BQQ22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 408
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BQQ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 408
File number: PEG 119 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 18 May 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 36, 425, 425A, 426A, 427, 430, 441A, 441C, 476 and 477,
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352
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
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103
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 & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
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
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: 87 Date of hearing: 1 May 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 119 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BQQ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
18 MAY 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 1 May 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”) 2-3). He first arrived in Australia in December 2017 as the holder of a visitor visa. He left Australia shortly after arriving and returned on a further visitor visa in June 2018 (CB 7 & 11).
On 25 June 2018, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-23). In that visa application, the applicant claimed that his father needed an operation and his family (because they did not have enough money and were unable to get money from a conventional bank) was forced to borrow money from an “underground bank”. The applicant claimed that the “underground bank often sent people to harass and threaten” his family and that his mother sent him abroad because she was “worried about [his] safety” (CB 16). The applicant further claimed that he cannot move anywhere else in China because the “underground bank” has connections and will find him and the police and government cannot protect him because they are in “collusion” with the “underground bank” (CB 17).
On 17 April 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 37-46). The delegate found that the applicant could obtain protection from relevant authorities and, as such, there would be no real risk that the applicant would suffer significant harm (CB 42).
On 4 May 2019, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 47-48). In that application, the applicant provided both a postal address and an email address under the “[c]orrespondence details” section of the application form (CB 48).
On 9 June 2021, the Tribunal invited the applicant (via email) to attend a hearing before it on 9 July 2021 at 10.30am (NSW time) (CB 52-55).
On 28 June 2021, the Tribunal wrote to the applicant (via email) advising him that, due to “stay-at-home restrictions”, the Tribunal would be closed to the general public and, as such, the hearing would either be rescheduled or would proceed using Microsoft Teams (CB 56-57).
On 30 June 2021, the Tribunal again wrote to the applicant (via email) proposing to conduct the hearing via telephone. That correspondence asked the applicant to respond to the Tribunal by 2 July 2021 to indicate whether he agreed to attend the hearing via telephone (CB 58).
The applicant did not respond to that correspondence.
On 2 July 2021, the Tribunal advised the applicant (via email) that, “due to circumstances beyond [their] control, the [Tribunal] Member [was] unable to conduct the hearing on 9 July 2021 as originally scheduled. The Tribunal notified the applicant that the hearing had been rescheduled to 22 July 2021 at 3.00pm (NSW time) (CB 59-62).
On 15 July 2021, the Tribunal again wrote to the applicant (via email) advising that the hearing (scheduled to take place on 22 July 2021) would need to be postponed “[d]ue to the current Sydney lockdown” (CB 63-64).
On 4 January 2022, the Tribunal notified the applicant (via email) that the Tribunal hearing had been rescheduled and would take place via telephone on 28 January 2022 at 2.00pm (NSW time) (CB 65-68).
On 20 January 2022 and 27 January 2022, the Tribunal sent SMS hearing reminder messages to the applicant (using the mobile phone number provided by the applicant in his review application). Those messages stated (CB 87-88):
The message sent was:
Reminder - Your AAT hearing is on 28/01/22. 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.
The applicant did not attend the hearing scheduled on 28 January 2022 (CB 69-71). The Tribunal “notes” in this regard provided (CB 69):
Documents received/Comments:
1:45PM Entered MSTeams audio meeting with a Mandarin interpreter.
1:47PMCalled the applicant on number provided. Applicant failed to answer. Member notified.
2:00PM Remained in the MSTeams meeting.
2:30PM Member called a no show. Interpreter signed off
On 28 January 2022, the Tribunal, noting that there was “no reason provided from the applicant as to the applicant’s failure to appear” and that there was “nothing before the Tribunal to suggest that he was ill”, proceeded to make its decision on the review without taking any further action to enable to applicant to appear before it (pursuant to s 426A of the Migration Act 1958 (Cth) (the “Act”)) (CB 76). By that decision, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 75-81).
On 28 February 2022, the applicant wrote to the Tribunal (via email) asking for an update on his case and providing the Tribunal with a completed “Change of Contact Details” form (CB 82-84). The applicant’s email correspondence relevantly stated (without alteration):
Please see the attachment for the change of my contact details.
Would you please send me the update information for my case? I lost my ex translater contact. As well as I do not have the AAT letter and old email address. Because it was my ex translater to help me to keep the AAT letter and the old email address. So I do not know my Case number.
Would you please let me know if there is some update information from you from 2021 to 2022? Because I really feel worried about my visa staus situation and review processing.
Would you please send me the information to my new email address: [new email address omitted]? I will say lots of thanks to you.
On 3 March 2022, the Tribunal sent the applicant a copy of its written reasons and notification letter (both dated 28 January 2022) (CB 85-86).
On 6 June 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision. Unfortunately, that application was filed outside of the 35-day time limit specified in s 477 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 concludes that an extension of time should not be granted.
CONSIDERATION
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 16 June 2022, a court book numbering 88 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 6 April 2023 and the affidavit of service of Benjamin Mayne affirmed and filed on 19 April 2023 (taken as read and in evidence at the hearing).
The Court notes that on 2 September 2022, procedural orders were made by Registrar Carney of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared before this Court without legal representation. He was assisted by an interpreter in the Mandarin language. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
The Court noted that the application for judicial review filed by the applicant only sought relief by way of an order quashing the Tribunal’s decision. It did not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act was not properly invoked. The Court explained this oversight to the applicant and made an order amending the application for judicial review to include the seeking of a writ of mandamus. This is now the preferred approach in this Court in relation to unrepresented applicants: Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103 (per Judge Given) at [25]-[35].
Noting that the applicant was not legally represented, the Court also explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decisions. It was explained further that, in this matter, the Tribunal’s decision is dated 28 January 2022. The date by which the applicant was therefore required to file his application in this Court was 4 March 2022. Unfortunately, the applicant did not file his substantive application until 16 June 2022. Hence, the delay here is 104 days.
The Court also explained that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her 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 “grounds” explaining why he believed 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 that the applicant appeared without any legal assistance, the Court explained 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 do so 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. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
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 delay here is 104 days.
This delay is significant and weighs against the granting of an extension of time.
Prejudice
It was conceded by Minister’s representative (in written submissions filed in this Court on 6 April 2023 at [30]) that the Minister does not face any significant prejudice “beyond the finality in administrative decision making”.
This weighs in favour of granting the extension of time.
Explanation
The longer the delay in question, 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 (“Manna”) at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
Here, the applicant’s “grounds” for an extension of time provide (without alteration):
1. I seek for preparation of more documents for appeal.
2. I need more time to prepare.
3. I seek for protection visa due to the safety issues.
In oral submissions before this Court, the applicant explained that during the COVID-19 pandemic he “caught the virus and [his] symptoms were quite serious”. The applicant claimed that, because of this, he “could not find people to sign documents for [him]”. The applicant also told the Court that, even if he had received correspondence from the Tribunal, he “could not understand what he needed to do and all he could do was forward the documents to someone else who would look after them for [him]”.
Unfortunately, the applicant did not provide the Court with any evidence in relation to any of the matters raised above. Insofar as the applicant claims that he required more time to prepare his application, this is not a valid excuse for failing to file his application for review within the requisite time period.
Further, the applicant provided no medical evidence to support any claims the applicant appears to be making in relation COVID-19 symptoms or how that may have impacted upon his ability to make an application to this Court.
In relation to the applicant’s explanation that he did could not understand the documents provided to him (and was thus unsure of what was required of him), the Court sympathises. Ignorance, however, is no excuse. In this regard, the Court notes the reasoning of the Federal Court in 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 the necessary steps to ensure that they do what is required of them. The applicant in this matter failed to do so. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about what was required of him.
The Court does not consider the explanations provided by the applicant to be satisfactory.
This weighs against granting an extension of time.
Merits
Arguably, the most critical factor for consideration when determining whether an application for an extension of time should be granted is whether the proposed application for judicial review has any “arguable prospect of success”.
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.
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] 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 believed that the “Tribunal made the decision based on the legislative requirements” but that he “thought that his visa was going to be approved”.
Unfortunately, the applicant’s concerns do not give rise to an arguable case of jurisdictional error of the sort that this Court can address.
The Tribunal’s Decision
In order to determine whether the proposed application for judicial review has “merit”, it is useful to first set out the Tribunal’s decision.
Here, the Tribunal’s decision is seven pages in length and spans 23 paragraphs. It also includes three pages containing extracts of relevant legislative provisions.
The Tribunal began by confirming that the application before it sought review of a decision made by a delegate of the Minister (on 17 April 2019) refusing to grant the applicant the visa. The Tribunal noted that the visa application was made on 25 June 2018 and summarised the applicant’s protection claims (as set out in that application) (at [1]-[3]).
The Tribunal continued:
4.On 4 January 2022 the Tribunal wrote to the applicant at the last notified email address advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a telephone hearing at 2.00pm on 28 January 2022. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.
5.The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. There was no reason provided from the applicant as to the applicant's failure to appear and there is nothing before the Tribunal to suggest that he was ill. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal then summarised the legislative criteria and definitions relevant to the grant of the visa and noted that, in accordance with Ministerial Direction No. 84, it had taken into account the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department as well as country information assessments prepared by the Department of Foreign Affairs and Trade (at [6]-[11]).
The Tribunal identified that the issue it was required to consider was whether the applicant had a “well-founded fear of being persecuted” in China and, if not, whether there were substantial grounds to believe that there was a real risk he would suffer significant harm if removed to China (at [12]).
The Tribunal then noted that the fact that a person claims to fear persecution does not establish the genuineness of the claimed fear, that it is “well-founded” or that it is for the reason claimed. Further, it is for the applicant to satisfy the Tribunal that “all of the statutory elements are made out”. The Tribunal noted further that the applicant claimed to fear harm in China because of the “underground bank” (at [13]-[14]).
The Tribunal determined that:
16.The claims before the Tribunal are lacking in essential detail. While the applicant has stated that he fears harm in China because of the underground bank, there is little detail in his application as to what has allegedly happened to the applicant in the past and whether there have been any attempts over the years to settle the alleged debt.
The Tribunal explained that the applicant had been invited to appear before the Tribunal but failed to do so. As a result, the Tribunal was “unable to question him further” about his claims. On the evidence before it, the Tribunal was not satisfied that the applicant had suffered persecution in the past or that he had a well-founded fear of persecution in the foreseeable future. On that basis, the Tribunal was not satisfied that the applicant was owed protection obligations under s 36(2)(a) of the Act (at [17]-[19]).
The Tribunal considered the alternative criterion in s 36(2)(aa) of the Act and noted that, while the applicant claimed to fear harm because of the “underground bank”, there was “little detail in his application” about what had allegedly happened to the applicant in the past and whether he had attempted to settle the alleged debt over the years. Noting that the Tribunal was unable to question the applicant “about the veracity of his claims”, the Tribunal was not satisfied that the applicant was a person who was owed protection under s 36(2)(aa) of the Act (at [20]-[21]).
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicant the visa (at [23]).
Proposed application for judicial review
The substantive application for judicial review filed by the applicant on 16 June 2022 contains two proposed “grounds of review” as follows (without alteration):
1. I affirm that I meet the refugee criterion in s.36(2)(a).
2.I did suffer significant harm and face a real risk of safety issues when I was in China. The decision made by Home Affairs and AAT is incorrect (See Annexures).
Proposed grounds one and two
Insofar as the applicant takes issue with the decision made by the Department, the Court notes that it does not have jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act.
The applicant also appears to disagree with the decision made by the Tribunal. Unfortunately for the applicant, disagreement, no matter how strongly felt, does not evidence an arguable case of jurisdictional error on the part of the Tribunal.
Further, as submitted by the Minister (at [33] in written submissions filed in this Court on 6 April 2023), to the extent that the applicant is asking the Court to consider for itself whether the applicant met the criteria for the grant of the visa, the Court cannot do so. As outlined above, this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks: Wu Shan Liang at 272.
The applicant’s proposed grounds of review do not identify any arguable case of jurisdictional error.
Otherwise
In its duty to assist self-represented litigants, the Court has also considered for itself whether any arguable case of error arises in the Tribunal’s decision (as per the decision in MZAIB).
In this regard, the Court will also consider whether Tribunal erred by proceeding to make its decision in this matter (pursuant to ss 426A(1A)(a) and 430 of the Act) without taking any further action to enable the applicant to appear before it.
Section 426A(1A) of the Act 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.
…
Section 430 of the Act provides:
430 Tribunal’s decision and written statement
Written statement of decision
(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.
Note:Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.
The Tribunal was required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act, which provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
On 9 June 2021, the applicant in this matter was initially invited to attend a hearing before the Tribunal scheduled to take place on 9 July 2021 (CB 53-55). That invitation was sent to the applicant via email at the email address provided by the applicant in his review application (CB 52).
Section 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provides:
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.
The Court is satisfied that the initial hearing invitation (dated 9 June 2021) complied with the legislative requirements set out in s 425A of the Act for the reasons that follow:
(a)was addressed to the applicant (CB 53);
(b)clearly indicated the date, time and means by which the applicant could attend that hearing (being on 9 July 2021 at 10.30am (NSW time) and providing the applicant with the address for the Tribunal’s Sydney registry) (CB 53): 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 9 June 2021 (CB 52): s 425A(2)(a) of the Act;
(d)was given to the applicant 30 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; and
(e)contained a statement describing the effect of s 426A of the Act and explaining what would happen if the applicant did not attend the hearing (CB 55): s 425A(4) of the Act.
For various reasons, the Tribunal postponed and rescheduled the hearing on multiple occasions (CB 56-65). None of these hearings proceeded.
Finally, on 4 January 2022, the Tribunal notified the applicant of a final hearing (now rescheduled to 28 January 2022) (CB 65-68).
This Court has recently addressed this issue in CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352 (“CRE21”). In CRE21, it is noted that in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152, the Full Court of the Federal Court discussed the notification requirements for a rescheduled hearing, as follows (emphasis added):
79.In dealing with an application for review the Tribunal has power, under s 427 of the Act, to ‘adjourn the review from time to time’. The review is a larger process than the oral hearing. The hearing is but a component of the review. Section 426A(2), under which the Tribunal may reschedule a hearing, is not apposite. That subsection is concerned with the case in which an applicant does not appear before the Tribunal on the appointed date and time. Section 426A(1) authorises the Tribunal to proceed to decision without further ado in the case of such non-appearance. What s 426A(2) makes clear is that the Tribunal is not bound to proceed to a decision then. It can reschedule the hearing. If express power to do that is necessary it is to be found, as an application of the general power to adjourn the review for which s 427 provides. Significantly, notification of a rescheduled hearing does not involve a fresh invitation for the purposes of s 425(1).
On the basis of the above, it is unnecessary for the Court to consider whether the notification letter (dated 4 January 2022) in relation to the rescheduled hearing met the requirements set out in s 425A of the Act. The Court is, however, satisfied that the notification letter was properly provided to the applicant via email (sent to the applicant at his most recent email address as provided to the Tribunal in relation to the review) (CB 52). The Court is also satisfied that email transmission is a valid method by which the Tribunal may give documents to an applicant: s 441A(5) of the Act.
For completeness, the Court notes that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case, at the end of the day it was transmitted, being 4 January 2022), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].
The Court is satisfied that the applicant was properly notified of the rescheduled hearing.
Once the applicant failed to appear at the rescheduled hearing before the Tribunal (scheduled to take place on 28 January 2022), the Tribunal was legislatively empowered to proceed to make a decision, based on the information before it, without taking any further action to allow the applicant to appear before it: ss 426A(1A)(a) and 430 of the Act.
The Court is satisfied, having considered the matter on a reasonably impressionistic level, that no error arises in the Tribunal proceeding in this regard.
Conclusion regarding merits of the substantive application
Assessed impressionistically, the applicant’s proposed “grounds of review” do not identify any arguable case of jurisdictional error on the part of the Tribunal. The Court has also been unable to identify any arguable case of jurisdictional error.
This weighs heavily against granting an extension of time.
CONCLUSION
The lengthy delay in filing, the lack of a satisfactory explanation for that delay and the lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at a reasonably impressionistic level only) are such that it is not in the interests of the administration of justice for the Court to grant the applicant an extension of time in this matter.
The application for an extension of time (as amended on 1 May 2023) is, accordingly, refused.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 May 2023
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