BTZ20 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1332
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BTZ20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1332
File number(s): SYG 1023 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 5 December 2024 Catchwords: MIGRATION – application for review of a registrar’s decision – review application filed out of time – whether an extension of time should be granted – length of delay and explanation for that delay – any prejudice caused – merits of the underlying application for review – application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 254, 256
Migration Act 1958 (Cth) ss 36, 66, 412, 476, 494B
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02, 21.04
Migration Regulations 1994 (Cth) regs 2.16, 4.31
Cases cited: BTZ20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1068
CQP15 v Minister or Immigration and Border Protection [2017] FCA 854
1 DZAFH v Minister for Immigration [2017] FCCA 387 Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
2 SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 15 November 2024 Place: Sydney Applicant: The applicant appeared in person Solicitor for the first respondent: Mr M Gao (HWL Ebsworth Lawyers) Second respondent: Submitting appearance, save as to costs ORDERS
SYG 1023 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BTZ20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
5 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application under r 21.02(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for an extension of time for the applicant to seek a review of a judicial registrar’s decision is 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 MCCABE:
Mr BTZ20’s application for judicial review was summarily dismissed by a judicial registrar pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules): see BTZ20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1068. The registrar concluded Mr BTZ20 did not have reasonable prospects of successfully prosecuting his application for judicial review of an earlier decision made by the Administrative Appeals Tribunal (Tribunal). The judgment was handed down on 18 October 2024. Mr BTZ20 applied to the Court under s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) to review the registrar’s exercise of power. That application was lodged on 31 October 2024.
Applications for review of a registrar’s decision must be filed within seven days: see r 21.02(1) of the Rules. The application for review in this case was filed six days out of time. The Court has the discretion to extend time under r 21.02(2) of the Rules.
Mr BTZ20 did not seek an extension of time when the application was filed. Mr BTZ20 made an oral application for an extension at the hearing. The first respondent (the minister) did not consent to that extension. It is therefore necessary to decide whether an extension of time should be given in the circumstances. In making that decision, I will necessarily have regard to the merits of the judicial review application (amongst other matters).
I am not satisfied an extension of time should be granted in all the circumstances. I explain my reasons below.
Background
The factual background has been gleaned from the minister’s submissions dated 12 November 2024. That background is uncontroversial.
Mr BTZ20 sought a Protection (subclass 866) visa (visa) in May 2018. The application forms are reproduced in the court book at pp 1ff. He provided an email address for the purpose of receiving correspondence in connection with the application: court book at p 9. I note he provided the same email address to the Tribunal and (most recently) the Court.
A delegate (delegate) of the minister refused the application on 18 September 2019. The delegate concluded Mr BTZ20 did not satisfy the criteria set out in s 36(2) of the Migration Act 1958 (Cth) (Act). The delegate’s decision record is reproduced in the court book at pp 51ff.
The decision record notes on its face the document was transmitted to the applicant by email to his nominated email address on 18 September 2019. The coversheet of the record also says the email was sent to that address on that date. Mr BTZ20 does not dispute that he received the email on 18 September 2019. I note the affidavit of Ms Cataldo that was filed in the proceedings before the registrar annexes a computerised record generated by the department. The record confirms the email was despatched to the nominated address on the same day the decision was made.
The covering letter reproduced at pp 52-53 of the court book also includes the following under the heading ‘Review Rights’:
The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.
The covering letter also provided contact details for the Tribunal’s registries with information about how to lodge an application for review.
After receiving the decision record, Mr BTZ20 lodged an application for review in the Tribunal on 16 October 2019.
On 5 December 2019, the Tribunal registry contacted Mr BTZ20 to point out a potentially insuperable obstacle: the application for review was filed one day outside the time limit for filing appeals. That time limit was calculated in accordance with s 412 of the Act and reg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations).
After inviting comment from the applicant, the Tribunal proceeded to decide on 3 April 2020 that it did not have jurisdiction to entertain the appeal because the application had been filed out of time. The applicant thereafter applied for judicial review of the Tribunal’s decision.
The Tribunal’s jurisdiction decision
The applicant’s submissions to the Tribunal are reproduced in the court book at pp 72-76. The Tribunal’s decision and reasons are reproduced in the court book at pp 79-80. They are succinct. After noting it did not have any discretion to extend time where the applicant files an application for review out of time, it said:
5.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 18 September 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
6.The Tribunal finds that the applicant is taken to have been notified of the decision on 18 September 2019. Therefore the prescribed period to apply for review ended on 15 October 2019.
7.As the application for review was not received by the Tribunal until 16 October 2019 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
The application for judicial review – and its summary dismissal
Mr BTZ20 lodged his application for judicial review pursuant to s 476 of the Act on 29 April 2020. The application identifies ten grounds (see annexure A to the application for review). The minister applied for summary dismissal of the application pursuant to r 13.13(a) of the Rules. The dismissal application came before Judicial Registrar Cummings on 18 October 2024. The judicial registrar decided the proceeding should be summarily dismissed on that same day and provided written reasons to that effect. After determining the Tribunal was correct to find it had no jurisdiction, the judicial registrar concluded the applicant had no reasonable prospect of successfully prosecuting the judicial review proceeding.
The application for review of the summary dismissal decision
That brings us to the present application. Section 254 of the FCFCOA Act authorises the Court to delegate powers to a registrar. The registrar in this case has exercised a delegated power to summarily dismiss the proceedings. Section 256 of the FCFCOA Act permits the disappointed applicant to ask the Court to review that exercise of power. I have already noted the power to review a registrar’s exercise of powers under the Rules must be lodged within seven days: r 21.02(1) of the Rules. Assuming the application has been filed in a timely way, r 21.04(1) of the Rules provides the review must proceed by way of a hearing de novo. That means I must consider whether the applicant has a reasonable prospect of successfully prosecuting the judicial review proceeding.
The application for an extension of time
I have already noted the application for review of the registrar’s decision was not filed within time. It was lodged six days after the seven-day deadline had elapsed. It is therefore necessary to decide whether an extension of time should be granted. In the absence of consent from the other party, the Court may grant the extension of time “on any terms that the Court…thinks fit”: r 21.02(2)(a) of the Rules.
While the Rules do not specify matters which must be considered when deciding whether to grant an extension of time, the minister correctly observed in written submissions that at least three matters would ordinarily be relevant. First, the length of the delay and the applicant’s explanation for that delay should be considered. Second, any prejudice to the respondent that might accrue if the extension were given should be taken into account – but the prejudice to the applicant if he or she is not given an extension should also be weighed in the balance. Third, the Court should have regard to the merits or prospects of success of the underlying application for judicial review. Ultimately, the Court is concerned to make a decision that is in the best interests of the administration of justice: see s 5(a) of the FCFCOA Act. I will deal with each of these matters in turn.
I accept the delay in this case is short: the applicant was only six days out of time. Having said that, the period for seeking a review is short precisely because there is a need to provide certainty in the conduct of the proceedings. If an applicant is dissatisfied with a registrar’s ruling, the applicant must act quickly to initiate a review. That did not happen in this case. Mr BTZ20 did not provide any written explanation of the delay for the purposes of this application. When I asked him about it at the hearing, he said he did not know what to do when he received the decision and waited to speak with a friend. I acknowledge the applicant was (and is) unrepresented; it is unsurprising that he is unfamiliar with the time limits which may apply. Yet as Foster J observed in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]: “… ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay”.
While the delay is relatively short, the explanation for the delay is not compelling. This consideration does not weigh in favour of granting the extension.
The minister properly acknowledges there is no prejudice to the minister if the extension of time were given, although the applicant presumably faces an early departure from Australia and an uncertain future. This consideration weighs in favour of the exercise of the discretion – although the weight is affected by the merits of the underlying application for review. If the applicant has poor prospects in the substantive application, the potential prejudice to the applicant may be negligible precisely because his position will not improve with delay.
That brings me to the merits of the substantive application. The minister says there is no point extending time in this case because the Tribunal’s decision that it lacked jurisdiction was correct. It follows there is no reasonable prospect of the applicant successfully prosecuting his application for review were he to be allowed to do so.
Mr BTZ20 does not dispute that he was provided with notice of the delegate’s decision on 18 September 2019, even as he says he did not actually become aware of the decision until a later date because of problems with the phone he used to access his email account. The Tribunal’s decision turned on whether the applicant had been notified of the delegate’s decision in accordance with the relevant law. If I am satisfied the Tribunal was right in concluding the procedures had been followed and the correct information had been communicated in the correspondence accompanying the decision record on 18 September 2019, that would be “unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment”: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [22] per French CJ and Gummow J.
Section 66(1) of the Act says the minister must notify an applicant of a decision in the prescribed way. Regulation 2.16(3) of the Regulations says the minister must use one of the communication methods prescribed in s 494B of the Act. Section 494B(5) authorises the minister to communicate by way of email directed to the last email address provided to the minister for the purpose of correspondence.
I have already explained the applicant advised the delegate in the application for a protection visa that the applicant could be contacted at the email address which has been used throughout his dealings with the department and the Tribunal: see court book at p 9. That email address was used in connection with the notification.
The Regulations also provide for how to calculate the time. Regulation 4.31(2) of the Regulations is applicable in this case since the applicant is not in immigration detention. That regulation provides:
…the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
As Judge Jarrett explained in DZAFH v Minister for Immigration [2017] FCCA 387 at [44]:
…the words of the legislative scheme are unequivocal. The relevant period commences to run on the day the decision is notified. Moreover, s.36(1) of the Acts Interpretation Act 1901 (Cth) requires that the first day be included. It provides that, where the period “is expressed to begin at, on or with a specified day”, the period is taken to include that specified day.
In this case, the day on which the applicant is taken to have received notice of the decision – i.e., 18 September 2019 – is the first day of the 28-day appeal period. The 28th (and therefore final) day of the appeal period was 15 October 2019. The applicant did not file his application for review until after that date. He is therefore out of time unless he can establish there was a defect in the notice which meant the appeal period did not begin to run.
Section 66(2) of the Act sets out the requirements of a valid notice of decision. Section 66(2)(d) requires that the notice include information about review rights. I am satisfied the notice in this case complied with those requirements. It made clear the decision can be reviewed, and it provided a clear enough explanation of the time within which the application for review could be brought by identifying the start date (i.e., the date on which the decision was communicated) and explaining how many days were left to run thereafter. I accept the notice did not expressly nominate the final date by which such an application should be filed, but it explained how that date should be calculated. That is enough. The applicant said he had trouble understanding the letter at first, but that was because of his unfamiliarity with the English language rather than any lack of clarity in the notice. The notice also made clear the applicant could bring that review, and it also provided the contact details for the Tribunal.
In short, I am satisfied the notice was valid. That being so, the time began to run and it expired before the applicant filed his application for review. There is no discretion to extend the time, even where the applicant is the victim of unfortunate circumstances or matters beyond his or her control: see (for example) CQP15 v Minister or Immigration and Border Protection [2017] FCA 854 at [44] per Kenny J.
Conclusion
The Tribunal was bound to make the decision it reached. There is no arguable case that could be made in an application for judicial review of that decision. I am satisfied it is not appropriate to extend time under r 21.02(2)(a) of the Rules for the applicant to seek a review of the judicial registrar’s decision.
I heard briefly from the parties regarding costs at the conclusion of the hearing. Mr Gao, who appeared for the minister, confirmed the minister would see costs in the fixed amount of $3,500 in respect of these proceedings although he pointed out the Court scale was silent about applications of this nature. It was also assumed the earlier order for costs made by the registrar would stand. In the circumstances, it is appropriate to revert to the parties to discuss the question of costs so that tailored orders can be formulated.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 5 December 2024
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