BUA23 v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 582
•24 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BUA23 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 582
File number(s): MLG 1236 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 24 April 2025 Catchwords: MIGRATION – Application for review of Registrar’s decision – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – where Registrar summarily dismissed the applicant’s application for judicial review – where review of Registrar’s decision filed 34 days out of time – where applicant’s application for review with the Tribunal was filed 997 days out of time – where Tribunal found it did not have jurisdiction to conduct the review – well settled that the Tribunal has no power to extend the time period for the lodging of an application for review before it –found grounds of substantive application not reasonably arguable – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2), 66(1), 66(2), Part 7, 411(1)(c), 412(1)(b), 494B, 494C
Migration Regulations 1994 (Cth) reg 2.16(3), 4.31(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 21.02, 21.04, sch 2
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228
BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
BUA23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1455
DZAFH v Minister for Immigration [2017] FCA 387
Rana v Minister for Immigration and Border Protection [2014] FCA 1233
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 5 March 2025 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Dietrich of Minter Ellison Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1236 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BUA23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
24 APRIL 2025
THE COURT ORDERS THAT:
1.The application for an extension of time for the filing of the Application for Review of a Registrar’s decision filed on 16 January 2025 is refused and the Application for Review is otherwise dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG
INTRODUCTION
Before the Court is an Application for Review of a Registrar’s decision filed on 16 January 2025 (Review Application).
The application before the Registrar was an Application by the first respondent (Minister), for summary dismissal of the applicant’s application for judicial review filed on 12 July 2023 (Substantive Application).
On 6 December 2024, the Registrar made orders for the Substantive Application to be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) and that the applicant pay the Minister’s costs fixed in the sum of $4,189.38.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, the Minister’s Application for summary dismissal (Summary Dismissal Application) is to be considered afresh.
BACKGROUND
The applicant is a citizen of Malaysia.
On 22 November 2016, the applicant entered into Australia on a UD-601 Electronic Travel Authority visa.
On 8 April 2018, the applicant applied for a protection (Class XA) (subclass 866) visa (Visa). Relevantly, the applicant’s claims for protection can be summarised as follows:
(1)he is divorced and his ex-wife and her family harass him;
(2)he was threatened, harassed and harmed by his ex-wife’s brothers;
(3)the ex-wife’s brothers blame the applicant for the divorce;
(4)he lodged a police report but there was no action taken by the authorities; and
(5)as a result he will continue to be threatened and harmed by his ex-wife’s brothers if he should be required to return to Malaysia.
In his Visa application, the applicant nominated the email address <[email protected] (applicant’s email address) for correspondence.
Refusal of protection visa on 9 October 2018
On 9 October 2018, a delegate of the Minister (Delegate) refused to grant the Visa (Delegate’s Decision) as they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act). On the same day, the Delegate sent a copy of its decision and reasons to the applicant’s email address (First Refusal Notification).
On 13 June 2020, the Department of Home Affairs (Department) re-notified the applicant of the Delegate’s decision to refuse to grant the applicant the Visa on the basis that the First Refusal Notification was affected by an error identified in BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517 (Second Refusal Notification).
Application for review at Tribunal on 3 April 2023
On 3 April 2023, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the Delegate’s Decision. In his application for review, the applicant nominated the email address <[email protected]> (applicant’s review email address) for correspondence.
On 4 April 2023, the Tribunal emailed the applicant confirming receipt of his application for review. In that correspondence, the applicant was advised that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
On 21 April 2023, the Tribunal emailed the applicant inviting him to comment on the validity of his application for review (Invitation to Comment). The Tribunal noted that the application had not been lodged within the relevant time limit pursuant to reg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations), which required the application to be filed within 28 days of the applicant receiving notification of the Delegate’s Decision.
On 27 April 2023, the applicant wrote to the Tribunal in response and provided the following (without amendment) (Response):
Hi administrative appeals tribunal
Tribunal has made decision to dismissed my application under section 426A(1A)(b) of Migration Act 1958.
However in notification from Tribunal allow me to reinstatement in writing under section 426(B).
Admistrative Appeal Tribunal. It was happened because the expiry date at MyVevo application is 35 days and meanwhile in notification of refusal application is 28 calender days. This two expired date make we confused and misleading about our last date to appeal in Administrative Appeal Tribunal. Cause of multiple expired date, I did not know my appeal application to be out of time.
I admit and allow me to say apologies that date was late to respond to appeal at I would like to make a explanation about my protection visa, have submitted and this my argument to defend myself. Because of this I feel threatened and nobody can protect myself from this threat. I believing necessary and foreseeable consequence to me being removed from Australia to a receiving country, being Malaysia, that there is a real risk to me and I will suffer significant harm. Remits the matter for reconsideration and directs that there The Tribunal grounds for believing that as a necessary and foreseeable consequence to me in Australia to the receiving my country, there is a real risk that me will suffer significant harm.
With this I hope Tribunal can reconsider my extension time and review of my application.
Thank you.
On 10 July 2023, the Tribunal found that it did not have jurisdiction to conduct the review. On 11 July 2023, the Tribunal sent a copy of its decision and reasons to the applicant’s review email address.
Tribunal decision
The Tribunal issued its statement of decision and reasons on 10 July 2023 (Tribunal Decision).
At paragraph [2] of the Tribunal Decision, the Tribunal noted that the applicant was not in immigration detention on the day the applicant was notified of the decision and that as such, pursuant to reg 4.31(2) of the Regulations, an application for review was required to be made within 28 days of that notification.
At paragraph [3] of the Tribunal Decision, the Tribunal found the applicant was notified of the Delegate’s Decision on 13 June 2020 by way of email, in accordance with the statutory requirements.
At paragraph [4] of the Tribunal Decision, the Tribunal noted that it wrote to the applicant on 21 April 2023 inviting him to comment on the Tribunal’s preliminary view that the application appeared to be invalid because it was not lodged within the relevant time limited.
At paragraphs [5] – [6] of the Tribunal Decision, the Tribunal considered the applicant’s Response and found that the applicant was taken to have been notified of the Delegate’s Decision on 13 June 2020 pursuant to s 494C of the Act, and that the prescribed period in which the applicant could apply for the review ended on 10 July 2020. As the application for review was not received by the Tribunal until 3 April 2023, the Tribunal found it had no jurisdiction in the matter.
PROCEEDINGS IN THIS COURT
On 12 July 2023, the applicant filed the Substantive Application. In the Substantive Application, the applicant sought orders quashing the Tribunal Decision and an order directing the Tribunal to determine the applicant’s application according to law.
In the Response filed 18 September 2023, the Minister sought orders that the application be summarily dismissed pursuant to r 13.13(a) of the Rules.
On 26 April 2024, Orders were made in Chambers listing the matter for a summary dismissal hearing on a date to be advised. Procedural orders were also made for the filing of a court book, written submissions and any additional evidence upon which the parties sought to rely. Relevantly, Order 5.2 of the Orders permitted the applicant to file any amended application with proper particulars of the grounds of the application. The applicant did not file any amended application, nor did he file any written submissions.
Summary dismissal hearing on 6 December 2024
The Summary Dismissal Application was heard by the Registrar on 6 December 2024. On the same day, the Registrar delivered ex tempore reasons summarily dismissing the Substantive Application: BUA23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1455 (Registrar’s Decision).
Rule 13.13(a) provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
…
(Emphasis added).
In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 (Spencer) the majority in the High Court said at [59]:
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power…
(Emphasis added.)
APPLICATION FOR REVIEW OF A REGISTRAR’S DECISION
Rule 21.02(1) of the Rules provides that an Application for Review of a Registrar’s decision must be made within 7 days. Rule 21.02(2) provides that time may be extended in a proceeding by the Court “on any terms that the Court … thinks fit”. Further, an application for review must be listed for hearing as soon as possible, and unless impossible to do so, within 14 days after the date of filing.
The Registrar’s Decision was made on 6 December 2024. An application for review of that decision in this Court was therefore required to be made no later than 13 December 2024. The Review Application was not lodged until 27 December 2024 and was not accepted for filing until 16 January 2025.
Accordingly, the Review Application was lodged 14 days after the expiry of the statutory timeframe and accepted for filing 34 days after the expiry of the statutory timeframe.
No formal application for an extension of time is sought by the applicant in the Review Application. The Minister therefore opposed any extension of time and contends that the Review Application is incompetent.
Should the Court be satisfied to make an order extending time?
The discretion of the Court to extend the time for the filing of an application for review is broad but must be exercised in the interests of justice. It will not be in the interests of justice to extend time for the bringing of a review application “if the substantive application does not have sufficient prospect of success to make it just that the prospective appellant be permitted to proceed with it” e.g., in another context, WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399, [9].
The principles to be applied in considering whether to extend time are well established and were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”. Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(1)the extent of the delay and the explanation for it;
(2)any prejudice to the respondent if an extension were granted; and
(3)the merits of the substantive application.
At the hearing before me on 5 March 2025, the applicant appeared on his own behalf assisted by an interpreter in the Malay and English languages.
Delay and explanation
The delay is of a moderate length, being a period of approximately six weeks. At the hearing the applicant’s explanation for the delay was confused. He variously said he filed the application on 5 December 2024, 1 November 2024 and finally, sometime in December around Christmas but the filing email “bounced back”. There is no evidence before the Court to explain the delay in filing nor was the applicant able to provide any plausible explanation for the delay at the hearing.
Prejudice
The Minister properly contends that it would not suffer any particular prejudice, other than as to costs, if an extension of time were granted.
However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
Did the Tribunal have jurisdiction to conduct the review?
Before considering the grounds of judicial review, it is useful to first consider whether the Tribunal had jurisdiction to conduct the review.
I accept the Minister’s submission that for the following reasons the Tribunal correctly found that it did not have jurisdiction to conduct the review.
The Delegate’s Decision was a Part 7 reviewable decision: s 411(1)(c) of the Act. Pursuant to s 412(1)(b) of the Act, an application for review of a Part 7 reviewable decision must be given to the Tribunal within the prescribed period, being, relevantly, a period ending not later than 28 days after the notification of the decision pursuant to reg 4.31(2) of the Regulations. The period begins running when a valid notification is given of the delegate’s decision in accordance with s 66(2) of the Act. As submitted by the Minister, the Second Refusal Notification complied with s 66(2) of the Act as it:
(a)specified the criterion of the visa for which the grant of the visa was refused (s 66(2)(a));
(b)gave written reasons why the criterion was not satisfied (s 66(2)(c)); and
(c)stated that the decision could be reviewed, who could apply for the review, the time in which the application for review may be made and where the application could be made under the subheading ‘Review Rights’ (s 66(2)(d)).
Section 66(1) of the Act requires that notification of the delegate’s decision be “in the prescribed way”. Regulation 2.16(3) of the Regulations requires that the applicant be notified by one of the methods specified in s 494B of the Act. Section 494B(5) provides, relevantly, that a document may be transmitted by email (s 494(5)(b)) to the last email address provided to the Minister for the purposes of receiving documents (s 494B(5)(d)).
The Second Refusal Notification was sent to the applicant’s last provided email address, being that which was provided in the protection visa application. Where the Minister gives a document by methods specified in s 494B of the Act, the person is taken to have received the document at the time specified in s 494C of the Act pursuant to reg 2.16(3) of the Regulations. Pursuant to s 494C(5) of the Act, where transmission is by email the applicant is taken to have received the document at the end of the day on which the document was transmitted.
Accordingly, the applicant was taken to have been notified of the Second Refusal Decision on 13 June 2020. Pursuant to reg 4.31 of the Regulations the applicant was required to lodge an application for review with the Tribunal within 28 days of notification, commencing on the date of notification: DZAFH v Minister for Immigration [2017] FCCA 387 at [45] per Jarrett J. The applicant was therefore required to have lodged his application for review with the Tribunal by 10 July 2020.
The applicant filed the application for review with the Tribunal on 3 April 2023 (997 days out of time). At the hearing in this Court the applicant conceded that the application for review of the Delegate’s Decision was made 997 days out of time. In these circumstances the Tribunal correctly concluded that it had no jurisdiction to review the Delegate’s Decision.
As submitted by the Minister, it is well-settled that the Tribunal has no power to extend the time period for the lodging of a valid application for review to it: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228 at [83] per McKerracher, Reeves and Thawley JJ.
At the hearing the applicant submitted that he was unable to make application to the Tribunal earlier due to financial constraints. In SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66 Heydon J at [3] said “There is no statutory power for the Tribunal, or anyone else, to extend the time limit, whatever the reason for the default”. Similarly, in Rana v Minister for Immigration and Border Protection [2014] FCA 1233 Wigney J at [3] said “… the Tribunal has no discretion to extend the time within which an application can be made, or to otherwise waive the time limit or receive an application out of time.”
Accordingly, the applicant’s asserted financial constraints are not presently relevant and the Tribunal correctly concluded that it had no jurisdiction to conduct the review.
Applicant’s grounds of judicial review
In his Substantive Application for judicial review filed on 12 July 2023, the applicant raises the following grounds (without amendment):
1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE.
2.THE TRIBUNAL DEPRIVED ME OF PROCEDURE FAIRNESS.
3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE.
4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIN ABOUT THE TYPES OF HARM RELEVANT IN MY CASE.
The above grounds are entirely unparticularised and at the hearing the applicant was unable to further articulate them. This alone is a sufficient basis to dismiss them: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (WZAVW) at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 (BDE16) at [20], [24].
Further, the grounds are template grounds which have been used in this Court on a number of occasions and do not engage with the Tribunal’s determination that it did not have jurisdiction.
Grounds 1, 3 and 4
Grounds 1, 3 and 4 are entirely misconceived in circumstances where the Tribunal correctly determined that it did not have jurisdiction to conduct the review. As the Tribunal did not have jurisdiction to conduct the review it was not required, and indeed did not have power, to consider the integers of the applicant’s case or ask him questions about the harm relevant to his case. As it correctly did not conduct a review, it did not rely on information provided by the applicant (incorrectly or otherwise) and did not rely on facts from another case.
The Tribunal correctly identified that the question before it was whether it had jurisdiction to conduct the review of the Delegate’s Decision and considered all relevant factors and information before it in relation to that question.
None of Grounds 1, 3 or 4 have any reasonable prospect of success. They are, to use the language of the plurality in Spencer, untenable.
Ground 2
As to Ground 2, I take this to refer to procedural fairness. If it be that by this ground the applicant submits that he was denied procedural fairness by the Tribunal not conducting the review, for the reasons set out above, that submission must be rejected. Further, on 21 April 2023 the Tribunal wrote to the applicant conveying its preliminary view that the application for review appeared invalid because it was not lodged within the relevant timeframe and invited the applicant to make any comments in writing on whether a valid application had been made by 5 May 2023. On 27 April 2023 the applicant responded to this invitation. The text of the Response is set out in paragraph [5] of the Tribunal Decision. At paragraph [6] of its decision, the Tribunal says that it considered the Response. Accordingly, the applicant was provided with an opportunity to respond to matters adverse to his interests, did so and the Tribunal had regard to the Response.
Ground 2 also has no reasonable prospect of success.
Conclusion
For the reasons set out above, the Minister has established that the applicant has no reasonable prospect of successfully prosecuting his claim for relief. The Summary Dismissal Application must therefore succeed. As the Substantive Application has no reasonable prospect of success, it is not in the interests of justice to extend the time for bringing the Review Application.
The Registrar’s orders made on 6 December 2024 dismissing the Substantive Application remain in full force and effect.
DISPOSITION
Accordingly, the application for an extension of time to review the decision made by a Registrar on 6 December 2024 is refused and the Application for Review is otherwise dismissed.
The Minister seeks the applicant pay its costs in the amount of $4,189.38. I note that this is in accordance with sch 2 of the Rules. I shall order accordingly.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 24 April 2025
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