BPJ17 v Minister for Immigration
[2019] FCCA 1164
•6 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPJ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1164 |
| Catchwords: MIGRATION – Application for extension of time – substantive application seeking review of the decision of the Administrative Appeals Tribunal – not in the interests of the administration of justice to extend time – no satisfactory explanation for the delay – lack of merit of the proposed substantive application – lack of merit of the further proposed substantive application – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.45AA, 414, 415, 425, 425A, 426A, 426B, 430, 438, 441A, 441C, 476, 477, 486I Federal Circuit Court Rules 2001 (Cth), rr.2.07A, 2.05 Migration Regulations 1994 (Cth), regs. 2.08F, 4.35D |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252 SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 Re Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment [1984] FCA 176; (1984) Admn 96-034/; (1984) 3 FCR 344 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491; (2000) 75 ALJR 470 QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 93 ALJR 252 ALD16 v Minister for Immigration & Anor [2018] FCCA 1185 AYG16 & Anor v Minister for Immigration & Anor [2017] FCCA 1897 AYT16 v Minister for Immigration & Border Protection [2017] FCA 252; (2017) 71 AAR 491 |
| Applicant: | BPJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1135 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 10 April 2019 |
| Date of Last Submission: | 10 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Williams |
| Solicitors for the Applicant: | Barriston Lawyers |
| Legal Representative for the Respondents: | Ms K. Evans |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to read Minister for Immigration, Citizenship and Multicultural Affairs.
The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) on 11 April 2017 and as amended on 4 October 2017 is refused.
The applicant pay the first respondent’s costs set in the amount of $3667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1135 of 2017
| BPJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 11 April 2017 and further amended on 4 October 2017 pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) seeking an extension of time within which to make an application pursuant to s.476 of the Act which in turn seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 March 2017 which confirmed the Tribunal’s earlier decision, made on 16 February 2017, to dismiss the applicant’s application for review of the delegate’s decision which refused the grant of a protection visa to the applicant.
The evidence before the Court is as follows:
1. A bundle of relevant documents filed and tendered by the Minister. (The Court Book – “CB” – “RE 1”).
2. The affidavit of Tom Hillyard, solicitor, made on 3 April 2019, annexing further relevant documents.
3. The affidavit of Behrooz Ehsani, solicitor, made on 4 October 2017.
4. The affidavit of Melissa Scriva, solicitor, made on 31 October 2017, (with exhibit), filed by the Minister, but tendered by the applicant (“AE1”).
Background
The Tribunal’s decision which is the subject of the application to the Court was made on 3 March 2017. The application pursuant to s.476 was lodged for filing on 11 April 2017 at 11:24pm. Section 477(1) of the Act provides that such applications must be made within 35 days of the date of the Tribunal decision.
In the current case, that application should have been made on or before 7 April 2017. It was not. The application pursuant to s.476 therefore is not competent. The applicant however, has sought, in writing, an extension of time pursuant to s.477(2) of the Act within which to make a competent application.
The Central Issue
The issue for the Court now is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (see SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 see also Re Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment [1984] FCA 176 at [18]-[23], SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23].
In the current case the relevant issues are the length of delay, any satisfactory explanation for the delay, and the merits of the proposed substantive application. In the current case the Minister does not press any prejudice if time were to be extended.
At the hearing for the extension of time the applicant was represented by counsel. The Minister by a solicitor. The applicant’s counsel sought to proceed by pressing an amended proposed substantive application. (See further below).
The Delay and The Explanation For It
The period of delay in this case is not long. It is five days. I note that in light of r.2.07A and r.2.05(3)(b) of the Federal Circuit Court Rules 2001 (Cth) the day on which the application is taken to have been filed is 12 April 2017. Nonetheless the significance of any delay, even for such a short period should not be ignored. The legislature has determined that a period of 35 days is an appropriate period within which such applications must be made.
I note in his submissions (at [21]) the Minister referred to Re Commonwealth; Ex Parte Marks [2000] HCA 67 at [16], to argue that the “High Court has emphasised that the time limits prescribed by the Federal Circuit Court Rules 2001 (Cth) are not to be ignored”.
In the current case, of course, it is not “simply” a rule of Court (as important as that would be) but an Act of Parliament.
The applicant’s solicitor Mr Ehsani sought to provide an explanation for the delay. It is clear from his evidence that Mr Ehsani knew of the statutory time limits. (See [3] of his affidavit).
The reason for the delay was said to be that the applicant had sought to make his application within the time limit, but an accompanying application to waive the payment of Court fees because of financial hardship, was “rejected” due to insufficient information having been provided. The substantive application with “the correct bank statement…was filed four days late”.
The reason for the delay therefore, at best, was the error of the applicant, or his solicitor, in not providing the “correct information”. This is not a satisfactory explanation for the delay, particularly in circumstances where the applicant was legally represented and his solicitor was aware of the statutory limitation.
I should note that in his submissions the Minister argues that no evidence has been provided to corroborate the assertion that the application was initially lodged in time. Mr Ehsani was not required for cross-examination by the Minister. In these circumstances his evidence remained unchallenged. There is no reason not to accept his evidence that an attempt was made to lodge the application within time. If the Minister was seeking to rely on the lack of corroboration that should have been put to Mr Ehsani in cross-examination.
In any event the application for the extension of time, and the accompanying substantive application, were said to have been prepared by a solicitor (Mr Ehsani) and filed by a law firm for the applicant.
Section 486I of the Act was at the relevant time in the following terms:
“(1) A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.
(2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.”
Mr Ehsani did not provide such a certificate notwithstanding that the document he filed sought to commence “migration litigation” (there is no signature in the relevant part of the application form which makes specific reference to s.486I of the Act). Why the Court’s registry accepted the document for filing in the face of an express statutory prohibition remains unexplained.
While I have proceeded to otherwise consider the application to extend time, the applicant’s solicitor’s failure to comply with a mandatory statutory obligation is a further factor to be considered in the current exercise.
To the extent that it may be inferred that the reason for the delay was caused by the applicant’s claimed impecuniosity, which required the fee waiver application, such a claim is not a satisfactory explanation for the delay (QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 at [7]). This is particularly so in circumstances where the applicant was legally represented and the consequences of not acting in a timely fashion were known.
In all, no satisfactory explanation has been provided for the delay.
The Proposed Substantive Application
What is of even greater weight however, in refusing the extension of time is that the sole ground of the proposed substantive application lacks merit such that it calls for the extension of time in the interests of the administration of justice.
The proposed substantive application contains one ground:
“1. The tribunal failed to exercise its jurisdiction according to law”.
It is at such a level of generality that this ground can only be described as hopeless. In any event no arguable case calling for further consideration arises from this ground.
The Further Proposed Substantive Application
At the hearing before the Court the applicant’s counsel sought to press two further proposed grounds which he said raised an arguable case such that the extension of time should be granted.
The further proposed grounds are in the following terms:
“Ground 1: The Tribunal failed to follow procedures required by law pursuant to section 427A(1E) of the Migration Act 1958 (Cth), thereby giving rise to jurisdictional error
1. Pursuant to section 426A(1E) of the Migration Act 1958 (Cth), the Tribunal failed to provide a written statement under section 430(1)(b); (c) or (d) of the Migration Act 1958 (Cth), setting out (b) the reasons for the decision; and (c) the findings on any material questions of fact; and (d) failed to refer to the evidence or any other material on which the findings of fact were based. The Tribunal therefore failed to review the decision pursuant to section 414 of the Migration Act 1958 (Cth), giving rise to jurisdictional error.
Particulars
Protection claims
a) At page 120 [8] of the Court Book, the applicant is a citizen of the Islamic Republic of Iran (Iran) and claims protection in the Commonwealth of Australia on the grounds that he was detained and tortured for nineteen days by the Iranian authorities for selling alcohol. The applicant claims he has subsequently received two summonses since departing Iran, first on 28 February 2013 and second 7 March 2013 and claims he will be “killed on return to Iran because he is accused of selling liquor which is considered anti-Islamic and against the regime.”
Dismissal under section 426A(1A)(b) of the Migration Act 1958 (Cth)
b) At [2] of the decision record:
On 16 February 2017 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.
c) At [3] of the decision record:
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.
d) At [4] of the decision record:
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.
Failure to appear before the Tribunal – section 426A(1A)(b) of the Migration Act 1958 (Cth)
e) Pursuant to section 426A(1A)(b) of the Migration Act 1958 (Cth), if the applicant is invited under section 425 to appear before the Tribunal but fails to appear, the Tribunal may dismiss the application without any further consideration of the application or information before the Tribunal, by way of written statement under section 426B(2) of the Migration Act 1958 (Cth).
Failure to apply for reinstatement – section 426A(1E) of the Migration Act 1958 (Cth)
f) Pursuant to section 426A(1E) of the Migration Act 1958 (Cth), 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(1) of the Migration Act 1958 (Cth).
The different statutory requirements for a written statement where there is a failure to appear under section 426A(1A)(b) and where there is a failure to apply for reinstatement under 426A(1E) of the Migration Act 1958 (Cth)
g) The statutory requirements to provide a written statement of reasons under section 426B(2) of the Migration Act 1958 (Cth) with regard to a failure to appear before the Tribunal pursuant to section 426A(1A)(b) of the Migration Act 1958 (Cth), are different to the statutory requirements to provide written statement of reasons under section 430(1) of the Migration Act 1958 (Cth) with regard to a failure to apply for a re-instatement of the application under section 426A(1E) of the Migration Act 1958 (Cth).
Written statement of decision under section 426B(2) of the Migration Act 1958 (Cth)
h) Section 426B(2) of the Migration Act 1958 (Cth) provides:
(2) If the Tribunal makes a non-appearance decision, the Tribunal must make a written statement that:
(a) sets out the decision; and
(b) sets out the reasons for the decision; and
(c) in the case of a decision to resinate an application:
(i)sets out the findings on any material questions of fact; and
(ii) refers to the evidence or any other material on which the findings of fact were based; and
(d) records the day and time the statement is made.
Written statement of decision under section 430(1) of the Migration Act 1958 (Cth)
i)Section 430(1) of the Migration Act 1958 (Cth) provides:
(1)Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application - - indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
Jurisdictional error
j) As particularised at ground (1)(b)-(d) above, the Tribunal failed to provide a written statement under section 430(b); (c) and (d) of the Migration Act 1958 (Cth), setting out (b) the reasons for the decision; setting out (c) the findings of any material questions of fact and failed to refer to (d) the evidence or any other material on which the findings of fact were based, as required by law where the applicant fails to apply for the re-instatement of the application under section 426A(1E) of the Migration Act 1958 (Cth). The Tribunal therefore failed to review the decision pursuant to section 414 of the Migration Act 1958 (Cth), giving rise to jurisdictional error.
Ground 2: The non-disclosure of information under section 438 of the Migration Act 1958 (Cth)
2. The certificate issued on 12 June 2015 pursuant to section 438(2)(a) of the Migration Act 1958 (Cth), with regard to folios 71to 73 of file number CLF2013/182045 at page 135 of the Court Book, was invalid and was therefore not a process according to law. As a consequence, the non-disclosure of certain information under section 438(1)(a) of the Migration Act 1958 (Cth) constituted a denial of procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth).
Particulars
Notice of the section 438(1)(a) certificate of the Migration Act 1958 (Cth)
a) At page 135 of the Court Book, on 12 June 2015, a delegate to the Minister issued a certificate 2015 pursuant to section 438(2)(a) of the Migration Act 1958 (Cth), with regard to folios 71to 73 of file number CLF2013/182045.
Jurisdictional error
b) The form of the certificate did not confirm to the statutory prescription and is invalid. Neither its existence nor its effect were ever disclosed to the applicant before the Tribunal, let alone in such away as may have invited consideration by the applicant of the potential operation of section 438(3) of the Migration Act 1958 (Cth).
c) The certificate did not relate to a matter permitted under section 438(1) of the Migration Act 1958 (Cth), with the result that it was invalid. For the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted jurisdictional error.
d) Alternatively, if the Tribunal proceeded on the basis that the certificate under section 438 of the Migration Act 1958 (Cth) was valid, it is entirely unclear how the delegate or the Tribunal considered the potential operation of s 438(3) or whether it considered s 438(3) at all. As such, there was been a denial of procedural fairness and accordingly a jurisdictional error is established.”
[Errors in the original.]
The following background provides context for these proposed grounds.
The applicant is a citizen of Iran. He arrived in Australia on 20 March 2013 (CB 31, CB 117).
The applicant applied for a protection visa on 1 July 2013 (CB 16). This was by operation of law, taken to be an application for a temporary protection visa (s.45AA of the Act, and reg.2.08F of the Migration Regulations 1994 (Cth) (“the regulations”) – see CB 111). The Minister’s delegate refused this application on 2 June 2015 (CB 111–CB 134).
The applicant applied for review to the Tribunal on 9 June 2015 (CB136). The applicant provided an email address, to which he indicated correspondence in relation to the application should be sent (CB 137).
On 9 January 2017 the Tribunal invited the applicant to a hearing pursuant to s.425 of the Act. The hearing was set down for 15 February 2017. The evidence before the Court, which is not now disputed by the applicant, is that the invitation was sent by email to the address he had provided in his application for review (CB 144–CB146).
I agree with the Minister, and not now disputed by the applicant, that the invitation complied with ss.441A(5) and 425A of the Act.
The invitation gave the applicant a period of notice in excess of the period provided for in s.425A(3) of the Act and reg.4.35D(3) of the regulations, and with reference to s.441C of the Act.
The invitation informed the applicant of the time, date and place of the hearing in compliance with s.425A(1) of the Act.
The invitation letter also notified the applicant of the purpose of the hearing which was to give evidence and present arguments in relation to the issues in the review.
The applicant does not now dispute that he did not appear before the Tribunal on the scheduled time and date (CB 147–CB148).
The following day, that is on 16 February 2017, the Tribunal decided to dismiss the application for review without taking any further consideration of the application or the information before it (“first decision”). That is, the Tribunal’s decision was:
“Application dismissed under s.426A(1A)(b) of the Migration Act 1958”.
The applicant’s proposed ground one now takes no issue with this decision and makes no assertion of legal error about it.
The Tribunal wrote to the applicant on the same day and notified him of the decision (CB 151–CB152). The applicant did not dispute this before the Court. That letter also notified the applicant that he could apply in writing to have his application for review reinstated. He needed to do so by 2 March 2017. This was the period prescribed by s.426A(1)(B) of the Act.
There is no dispute now that the applicant did not make any application for reinstatement or otherwise contact the Tribunal.
On 3 March 2017 the Tribunal confirmed its decision to dismiss the application for review (CB156–CB157). The applicant’s proposed ground asserts jurisdictional error on the part of the Tribunal in relation to this decision (“second decision”).
Given that circumstance it is convenient to set out the entirety of that decision:
“1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 June 2015 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2. On 16 February 2017 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.426B(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...”
The terms of the proposed ground one are set out above. It must be said that in light of the relevant statutory “scheme” and the actual decision of the Tribunal, it is difficult to understand the exact jurisdictional error alleged in the proposed ground and in written submissions.
In any event in light of the applicant’s oral submissions the following appears to be the central core of the applicant’s argument.
Section 426A(1A)(b) on which the Tribunal relied for its first decision requires the Tribunal to provide a written statement under s.426B of the Act to explain its decision. The Tribunal did this. The applicant raises no argument about this.
The Tribunal’s second decision was required to comply with s.426A(1E) of the Act. This section provides that if an applicant fails to apply for reinstatement within the specified 14 day period (which is what occurred in the current case) the Tribunal must confirm its decision to dismiss the application. It must do so by providing a written statement pursuant to s.430 of the Act.
The applicant’s argument is that the Tribunal did not comply with this latter requirement. That is it did not comply with s.430 of the Act. This is said to be because in its decision record the Tribunal failed to set out each of the matters at s.430(1)(b), (c) and (d).
Section 430(1) is in the following terms:
“(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application-indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.”
Before the Court it appeared that the applicant’s argument was that in its second decision the Tribunal was required to set out the evidence, its findings on material questions of fact and its reasons, in relation to the applicant’s claims for protection. That is, to have actively considered the material and information before it to determine whether the applicant should be granted a protection visa.
The applicant’s ground and the explanation for it can only be described as arising from a fundamental misunderstanding of the relevant statutory regime and the actual nature and character of the Tribunal’s second decision, and for that matter the first decision as well.
The applicant’s argument that s.426A(1A)(b) and s.430 are different must, obviously, be accepted. But there is nothing in s.430 which compels the Tribunal to consider the applicant’s claims for protection. As is clear the terms of s.430 are directed to the actual decision made by the Tribunal.
It is important to note the distinction between s.426A(1)(a) and s.426A (1A)(b).
If the Tribunal had decided to proceed under s.426A(1A)(a) (which it did not) then the issue for consideration would be to “make a decision on the review”.
Section 414(1) of the Act compels the Tribunal (subject to s.414(2) to review the delegate’s decision. That is, in part, what the Tribunal sought to do when it invited the applicant to a hearing.
The Tribunal’s powers on review are set out in s.415 of the Act. Specifically s.415(2) provides:
“(2) The Tribunal may:
(a)affirm the decision; or
(b)vary the decision; or
(c)if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d)set the decision aside and substitute a new decision; or
(e)if the applicant fails to appear - exercise a power under section 426A in relation to the dismissal or reinstatement of an application.”
The distinction between s.415(2)(a), (b), (c), (d) on the one hand and (e) on the other is clear. Unlike the other sub-sections of s.415(2), s.415(2)(e) directs attention to s.426A.
The distinction between s.426A(1A)(b) (to which s.415(2)(e) is connected given the reference to “dismissal”, and s.426A(1A)(a) is clear. Section 426A (1A)(a) may result in any of the options set out in s.415(2), other than (e), given that (e) is linked to s.426A(1A)(b), and not s.426A(1A)(a).
That is, s.426A(1A)(b) does not involve a “a decision on the review” (as in s.426A(1A)(a)), but rather, and simply, a dismissal of the application “without any further consideration of the application or information before the Tribunal”.
Those words in s.426A(1A)(b) make clear, and it is abundantly clear from the terms of the Tribunal’s first decision itself, that the Tribunal’s decision was not to affirm, or vary, or remit, or set aside the delegate’s decision. But rather it was something completely different. It was to dismiss the application for review (CB 153). Noting of course that on the evidence there was no contact from the applicant whatsoever prior to the Tribunal’s decision.
The Tribunal’s second decision which is the subject of the applicant’s further proposed ground, was to confirm the earlier decision to dismiss the application for review. Section 426A(1E) required the Tribunal to notify the applicant of this by a written statement made pursuant to s.430 of the Act.
In this statutory context the Tribunal’s second decision did comply with the requirements of s.430(1).
The second decision of the Tribunal was to confirm the dismissal of the application for review (s.430(1)(a)).
The reason for that decision was that the applicant had not sought reinstatement of his application for review within the required fourteen day period (s.430(1)(a) and (b).
The Tribunal’s relevant (to the statutory power it was exercising) findings of fact, and the evidence on which they were based, was set out in its second decision record (s.430(1)(c) and (d)). That is, that the applicant had been notified of the dismissal decision and he had not sought reinstatement (s.430(1)(c) and (d)).
Given that the second decision was one which engaged s.426A(1E) the Tribunal’s decision did contain the indication (“indicates”) set out at s.430(1)(e).
The Tribunal’s decision recorded the day and time the second decision was made in compliance with s.430(1)(f) (see CB 156).
In all there is no merit in ground one of the further proposed substantive application such that it calls for the extension of time in the interests of the administration of justice.
Further proposed ground two asserts that the Tribunal fell into error because of the failure of the Tribunal to afford the applicant procedural fairness in relation to documents which were the subject of a non-disclosure certificate (issued by an officer of the Minister’s Department) said to be pursuant to s.438 the Act. (The Minister conceded that the certificate was not valid).
In essence the applicant’s further proposed ground, and the written submissions, assert that the certificate was invalid. The Tribunal did not disclose to the applicant the existence of the certificate, or its effect, or the documents which were the subject of this “invalid” certificate. In short, the applicant was therefore denied procedural fairness.
The applicant’s written submissions to the Court indicated that the applicant would seek leave at the hearing to yet further amend the further proposed ground so as to take into account the High Court’s judgement in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 (“SZMTA”), where the High Court considered certificates issued pursuant to s.438.
At the hearing the applicant (through his counsel) sought this leave. The Minister opposed it on the basis that the applicant’s ground had already “pleaded” the matter of a denial of procedural fairness.
It is important to note that the High Court handed down SZMTA on 13 February 2019. The applicant’s written submissions were dated 28 March 2019 and signed by counsel on that date. They were filed with the Court on the same day.
There was no explanation from the applicant as to why, given that the written submissions were drafted some six weeks after the High Court judgment was handed down, he had not made reference to it and needed to further “amend” his argument.
In any event the applicant’s counsel was given the opportunity to explain the further proposed ground two, including in light of the High Court judgment. It must be said that this did not advance the applicant’s case.
The further proposed second ground lacks requisite merit for the following reasons.
One, the applicant’s written and oral submissions proceeded on the same misunderstanding of the relevant statutory regime, and the Tribunal’s decisions, as set out above in relation to further proposed ground one.
Before the Court the applicant appeared to concede that if further proposed ground one was found not to have merit this, would provide a difficult, but not insurmountable, hurdle to revealing merit in the further proposed ground two.
The applicant did not subsequently satisfactorily explain how the ground could be seen as having merit, notwithstanding his relevant misunderstandings in relation to further proposed ground one.
Two it is not disputed that the applicant failed, without explanation, to attend the hearing before the Tribunal. The Minister submitted that in circumstances where the applicant failed to attend the Tribunal hearing he waived his right to be informed about the non-disclosure certificate.
The Minister relied on two judgments of this Court for that proposition. These were ALD16 v Minister for Immigration & Anor [2018] FCCA 1185 (“ALD16”) at [62] and AYG16 & Anor v Minister for Immigration & Anor [2017] FCCA 1897 (“AYG16”) at [42].
In ALD16 the Court found at [62]:
“As was the situation in AGY16, so too in the present case, there is no lack of procedural fairness in the Tribunal’s decision to not disclose the certificate (if it made such a decision) or notify the Applicant of the documents or information conveyed by the certificate in circumstances where the Applicant failed to attend the hearing. The Tribunal had no opportunity at the hearing to inform the Applicant of the existence of the certificate or notification…”
In relation to AGY16 the Minister sought to rely on [42]. However what is directly relevant to the current case is to be found at [38]:
“Further, in the circumstances of this case, there was no lack of procedural fairness in the Tribunal not disclosing this certificate or notification to these Applicants or the documents or information therein in circumstances where they failed to attend the hearing. Neither the certificate or notification could possibly have had the effect of circumscribing their participation in the hearing. The Tribunal had no opportunity at the hearing to inform the Applicants of the existence of the certificate or notification.”
So too in the current case. The Tribunal’s decisions, as set out above, were to dismiss the application for review for non-attendance and to subsequently confirm that dismissal.
As the majority of the High Court, in my respectful view, made clear in SZMTA the lack of disclosure of the certificate, “triggers an obligation of procedural fairness on the part of the Tribunal” (at [2] and [27] of the majority judgment of SZMTA), any such non-disclosure must be material to the decision for jurisdictional error to be revealed (see also [4]).
That is see [38] of SZMTA and generally [45]-[50]):
“For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a “practical injustice”32: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision33”.
[Footnotes omitted.]
In the current case the Tribunal’s first decision was to dismiss the application for non-attendance. To respectfully use the terminology from AGY16: neither the certificate or its notification could “possibly have had the effect of circumscribing” the applicant’s participation at the hearing. That is, the certificate and the documents to which it related were not material to the Tribunal’s decisions, noting the exact nature of those decisions.
Three, the Tribunal was obliged by the operation of law, in the circumstances of this case, to confirm the dismissal of the application in circumstances where the applicant did not seek reinstatement (s.426A(1E). (See also AYT16 v Minister for Immigration & Border Protection [2017] FCA 252 at [10]).
In this circumstance the Tribunal was not required to, as the Minister submits, “deal” with the certificate or its subject documents, given that it was not relevant in any way to the dismissal, and confirmation, decisions.
In all therefore, further proposed ground two lacks requisite merit to argue for the extension of time.
Conclusion
The applicant has not provided a satisfactory explanation for the delay in making his application. Importantly, neither the sole ground of the proposed substantive application or the two further proposed grounds have merit such that they call for the extension of time in the interests of the administration of justice. The application to extend time should therefore be refused. I will make the appropriate order.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 6 May 2019
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