BXG19 v Minister for Home Affairs
[2020] FCCA 2531
•10 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXG19 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2531 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal that it did not have jurisdiction to review a decision of the Delegate of the Minister for Home Affairs not to grant Protection (Class XA) (Subclass 866) visas to the Applicants because their review application to it was made out of time – Applicants needed an extension of time under s.477(2) of the Migration Act 1958 (Cth) of nearly seven and a half years to make their judicial review application to this Court – Applicants’ proposed substantive ground asserting jurisdictional error of the Tribunal contended that the notification letter advising them of Delegate’s refusal of a Protection visa to them and advising them of their review rights did not comply with the requirement of s.66(2)(d)(ii) as it did not state the date by which they had to validly make their application for review to the Tribunal – Held that delay in application to this Court extreme and without satisfactory explanation – notification letter complied with s.66(2)(d)(ii) – no reasonable prospects of success for proposed substantive ground – application for extension refused. |
| Legislation: Migration Act 1958 (Cth), ss.5, 65, 66, 412, 477, 494B, 494C Migration Regulations 1994 (Cth) |
| Cases cited: AWA15 v Minister for Immigration and Border Protection [2018] FCA 604 AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391 |
| First Applicant: | BXG19 |
| Second Applicant: | FFV17 |
| Third Applicant: | CTU17 |
| Fourth Applicant: | CTV17 |
| Fifth Applicant: | CTW17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1139 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 29 October 2019 |
| Date of Last Submission: | 14 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr S. Prince S.C. with Mr P. Bodisco of Counsel |
| Solicitors for the Applicants: | Michaela Byers, Solicitor |
| Counsel for the First Respondent: | Mr N. Swan of Counsel |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the present second named Respondent’s name be amended from Refugee Review Tribunal to Administrative Appeals Tribunal.
The Amended Application filed in this Court on 24 June 2019 seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1139 of 2019
| BXG19 |
First Applicant
| FFV17 |
Second Applicant
| CTU17 |
Third Applicant
| CTV17 |
Fourth Applicant
| CTW17 |
Fifth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants in this proceeding are as follows:
a)the First Applicant is a male citizen of Fiji aged 46 years;
b)the Second Applicant is a female citizen of Fiji aged 43 years and is the wife of the First Applicant;
c)the Third Applicant is a female citizen of Fiji aged 20 years and is the daughter of the First and Second Applicants;
d)the Fourth Applicant is a male citizen of Fiji aged 19 years and is a son of the First and Second Applicants; and
e)the Fifth Applicant is a male citizen of Fiji aged 16 years and is a son of the First and Second Applicants.
(collectively the Applicants)
By Amended Application filed in this Court on 24 June 2019, they seek:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 2,737 days, nearly seven and a half years, outside the 35 day time limit prescribed by s.477(1) to make their substantive application for judicial review to this Court; and
b)to quash and have re-determined the decision of the Second Respondent, the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal), dated 6 October 2011 which found that it did not have jurisdiction to review the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 29 June 2011 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visa(s)) under s.65 of the Act.
Background
The First Applicant arrived in Australia on 30 July 2003 holding a Temporary Business Entry (Class UC) (Subclass 456) visa before returning to Fiji on 11 August 2003. He then arrived in Australia as a dependant on the Second Applicant’s Temporary Work (Skilled) (Subclass 457) visa (Subclass 457 visa) on 10 March 2006, which ceased on 30 March 2007. On 2 December 2006 the First Applicant departed Australia before returning on 10 December 2006 on a further Subclass 457 visa which ceased on 21 November 2009. He was then granted further Bridging visas and applied for a Protection visa on 19 November 2010. The Second, Third, Fourth and Fifth Applicants were included in the First Applicant’s Protection visa application as dependant family members and made no protection claims in their own right. Accordingly, the success of their applications for Protection visas were dependent upon the success of the First Applicant’s Protection visa application.
Claims to Protection
It is sufficient for present purposes to record that the First Applicant’s claims to protection were as summarised by the Delegate in his Decision Record, as follows:
The applicant claims that he and his wife and three eldest children came to Australia after his wife was sponsored by a nursing agency to work in Australia on subclass 457 Business visa in November 2005. The applicant resigned from his job as a police officer and his wife resigned from her job as a registered nurse and took the opportunity to come to Australia as a way of escape from Fiji. The applicant claims that in Fiji he was living in a community where a large number of rebel soldiers and villagers who were involved in the May 2000 coup also lived. The applicant claims that he was employed at a police station that the rebels took over on 7 July 2000 and played an active role in the subsequent investigations which resulted in convictions and imprisonment for most of the rebel soldiers who took part.
At present most of the rebel soldiers and villagers have completed their terms of imprisonment and have been released back into the community according to the applicant. The applicant claims that most of the rebel soldiers and villagers who he was involved in arresting live within his community. The applicant claims that if he and his family were to return to Fiji he would live in “our village” which is 30 kilometres away from Savusavu Town where he last served as a police officer. Furthermore the applicant claims most of the rebels are within walking distance (1-2 kilometres) from his village. The applicant fears that being an ex-police officer would make him a target for revenge from rebel soldiers he helped convict or villagers who have an inherit dislike of police officers.
The applicant names several rebel soldiers and villagers from his local area who he claims were involved in the takeover of the police station at Savusavu Town on 7 July 2000. The applicant claims because he was actively involved in arresting and prosecuting these people he and his family would be in danger of acts of reprisals. The applicant claims that he could not live in the city if he returned to Fiji as neither he or his wife have employment, could not resume their former jobs and would have to return to the village where they grew up on the island of Vanua Levu if they returned to Fiji.
Relevant Criteria and Law Applicable to Protection Visa Applications Under the Refugees Convention Criterion
A convenient summary of the grounds for the grant of Protection visas under the Refugees Convention criterion can be found can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration and Border Protection [2018] FCA 604 at [5] – [6] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Decision of Delegate and Notification of Decision to Applicants
The First and Second Applicants attended an interview with the Delegate on 14 June 2011.
In his Decision Record the Delegate considered the claims to protection as made by the First Applicant in his Protection visa application with reference to independent country information.
In the result the Delegate found that Australia did not owe protection obligations to the Applicants under the Refugees Convention criterion and refused to grant Protection visas to them.
The Applicants were notified of the adverse decision of the Delegate by a “Notification of refusal of application for a Protection (class XA) visa” letter dated 29 June 2011 (Notification Letter) sent by registered post from the Department of the Minister (Department) to the address in Auburn provided by the First Applicant in the Protection visa application form. The Notification Letter attached a number of documents, including the Decision Record of the Delegate, a “Client Services Information” document and a “R10 Review Tribunal” brochure (the Brochure).
It is common ground that the Notification Letter and its attachments were received by the First Applicant.
The Notification Letter contained a section headed “Review rights” which extended from the last line of page one onto the top half of page two, which read as follows:
Review rights
No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Refugee Review Tribunal (RRT) for a review of this decision. An application for review of this refusal decision must be given to the RRT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
If you make a valid application for review of this decision, your bridging visa will remain in effect until 28 days after the RRT has notified you of its decision. If you withdraw your application for review to the RRT, your bridging visa will cease 28 days after that withdrawal.
If the RRT remits your application to the department for reconsideration your bridging visa will remain in effect while your application is being processed.
Please note that this review period is prescribed in law and an application for review may not be accepted after that date.
As this letter was sent by mail to an address in Australia, you are taken to have received it seven (7) working days after the date of the letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.
(emphasis added)
The third page of the Notification Letter contained the following section under the heading “Your immigration status”:
Your immigration status
When you lodged your application for a Protection (class XA) visa, you were granted a bridging visa to allow you to stay in Australia lawfully while your application was being processed. Unless you make a valid application for review of this decision, your bridging visa will cease 28 calendar days after you are taken to have received this letter.
As this letter was sent by mail to an address in Australia, you are taken to have received it seven (7) working days after the date of the letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.
(emphasis added)
It will be observed that the second paragraph of this section repeated verbatim the last paragraph of the section headed “Review rights” extracted in the preceding paragraph.
As at the date of the Notification Letter in June 2011, the relevant provisions in relation to the sending of the Notification Letter and its attachments were comprised relevantly in ss.66, 412, 494B and 494C of the Act and regs.2.16 and 4.31 of the Migration Regulations 1994 (Cth) (Regulations). Those provisions have not relevantly changed since 2011 and were the subject of consideration in the Federal Court of Australia in the series of cases commencing with DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17), further referred to below. DFQ17 was delivered on 18 April 2019, and this case commenced some 21 days later on 9 May 2019. The relevant statutory provisions were as follows.
Section 66 of the Act provided as follows:
66 Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c) unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision.
(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
(emphasis added)
Section 412 of the Act provided as follows:
412 Application for review by the Refugee Review Tribunal
(1) An application for review of an RRT‑reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by the non‑citizen who is the subject of the primary decision.
(3) An application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.
(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).
(emphasis added)
Regulation 2.16 of the Regulations relevantly provided as follows:
2.16 Notification of decision on visa application
(1) For subsections 66 (1) and 501G (3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.
Grant of visa
(2) …
Refusal to grant visa
(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Note If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
Regulation 4.31 of the Regulations provided as follows:
4.31 Applications
(1) For the purposes of paragraph 412 (1) (b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT‑reviewable decision to which the period applies must be given to the Tribunal.
(2) A period mentioned in subregulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of:
(a) in the case of an application given to the Tribunal by or for an applicant in immigration detention on that day — 7 working days (beginning with the first working day that occurs on or after that day); or
(b) in any other case — 28 days.
Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
(3) Subject to this regulation, an application must be lodged at a registry of the Tribunal:
(a) by posting the application to that registry; or
(b) by leaving it at that registry in a box designated for the lodgment of such applications; or
(c) by leaving it with a person employed at that registry and authorised to receive such documents; or
(d) by means of electronic facsimile transmission to that registry.
(4) An application posted in accordance with paragraph (3) (a) or transmitted in accordance with paragraph (3) (d) is not to be taken to have been lodged until it is received at a registry of the Tribunal.
(emphasis added)
Sections 494B and 494C of the Act relevantly provided as follows:
494B Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
…
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.
494C When a person is taken to have received a document from the Minister
(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
…
Dispatch by prepaid post or by other prepaid means
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.
(emphasis added)
Further, the phrase “working day” is defined in s.5(1) of the Act as follows:
working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.
(emphasis added)
Decision of Tribunal
The Applicants lodged an application for merits review of the decision of the Delegate with the Tribunal on 12 August 2011. Attached to the merits review application was a letter from the First Applicant, which stated as follows:
I [BXG19] of the above mentioned address would like to apologize for the late lodgement of our application for our Refugee Review Tribunal.
Therefore this is due to the miscalculation of the days since we counted seven days (working days) after the day we received the letter and then 28 days.
We would have lodged our application in time if our calculation was right so I am requesting if you can consider my application for Refugee Review Tribunal.
By letter dated 22 August 2011 the Tribunal wrote to the Applicants inviting them to comment on or respond to the following:
I am of the view that your applications are not valid applications as they were not lodged within the relevant time limit. The time limit is 28 calendar days from the day on which you are taken to have been notified of the primary decisions. The primary decisions were posted to you on 29 June 2011 and, on the basis that 8 July 2011 was the date on which you are taken to have been notified, the last day for lodging the applications for review was 5 August 2011. As the applications were not received until 12 August 2011, it appears to be out of time. However, this is a matter which must be determined by a Tribunal Member.
By letter dated 14 August 2011 (but stamped as “received” by the Tribunal on 14 September 2011) the First Applicant responded to the Tribunal’s letter as follows:
I [BXG19] would like to personally thank your office for your kind invitation to comment on the validity of applications for review.
I am sorry because I was confused about the 28 days since I thought it was 28 working days, which I did worked that out instead of the 28 calendar days and that is where I saw it was out of time when I come to lodge my application.
However, I would have lodge it in time if my calculation of days was right, so to be honest I am learning from my mistake and I hope that it would not happen again in the future.
Thank you in advance.
At [1] – [13] of its Decision Record the Tribunal set out the background and analysed the relevant statutory provisions, including those referred to at [13] above. Then from [17] – [23] the Tribunal recorded the reasoning which led to its decision that it did not have jurisdiction to hear and determine the merits review application:
[17]The material before the Tribunal indicates, and the Tribunal finds, that the first seven named applicants were not in immigration detention when notified of the decision.
[18]The Tribunal finds that the first seven named applicants are seeking review of an RRT reviewable decision covered by s.411(1)(c) and that the applicable prescribed period is 28 days, commencing on the day on which the applicants were validly notified of the decision in accordance with the Act: s.412(1)(b) and r.4.31(2)(b).
[19]The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2). In relation to the time within which a review application had to be lodged, the decision notice correctly stated that the review application had to be lodged within 28 calendar days of receipt of the notice. The notice also clearly and correctly stated that the applicants were taken to have received the notice 7 working days after the date of the notice.
[20]As the decision notice was sent by prepaid registered post, the Tribunal made enquiries with the Department to determine whether the letter was sent within 3 working days. Converga, which provides mail and distribution services for the Department, confirmed that the decision notification was dispatched by prepaid registered post on 29 June 2011 (RP480034300015).
[21]The material before the Tribunal indicates that the first seven named applicants did not give the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice was sent by prepaid post on 29 June 2011 from a place in Australia to the applicants at an address in Australia, being the last postal address provided to the Minister by the applicants for the purposes of receiving documents.
[22] The Tribunal finds that the decision notice was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and s.494B(4). Therefore, the first seven named applicants are taken to have received the notice on 8 July 2011, being 7 working days after the date of the notice.
[23] Therefore, the Tribunal finds that the first named seven applicants were properly notified of the delegate’s decision and are taken to have been notified on 8 July 2011. Hence, the prescribed period of 28 days within which the application for review could be lodged ended on 5 August 2011. The application for review was not received by the Tribunal until 12 August 2011, after the prescribed period had expired.
Grounds of Extension Application
The Grounds of the extension application made by the Applicants are as follows:
1. On 18 April 2019 the Full Federal Court in DFQ17 v Minister for Immigration [2019] FCAFC 64 found that the requirement in s66(2) of the Migration Act 1958 (Cth) that a notification of a visa refusal must state the time in which the application for review may be made.
2. The departmental notification of refusal of the applicant’s visa dated 29 June 2011 did not state the exact date/time frame that applicant had to make an application to the Tribunal by and thereby contains the same jurisdictional error as that of Applicant DFQ17.
3. The applicant applied to the Refugee Review Tribunal, which has since been incorporated into the Administrative Appeals Tribunal. On 7 October 2011 the Tribunal made a decision that it had no jurisdiction. This decision is plainly wrong in light of the judgment in DFQ17 and the applicant seeks the leave of the Court to extend the time to make this application to challenge the Tribunal's no jurisdiction decision.
In support of the extension application the First Applicant affirmed and relied upon an affidavit dated 25 June 2019 in which he deposed at [2] – [5] as follows:
[2] I understood that I was given 7 workings to receive the refusal notification from the Department of Immigration. I continued to court the 28 days as working days as the letter did not indicate otherwise.
[3]I applied for review to the Refugee Review Tribunal on 12 August 2011. However, in a decision dated 6 October 2011 the Tribunal decided that the last day for review was 5 August 2011 and my review application was out of time and the Tribunal had no jurisdiction.
[4]Each time I sought migration advice I was told there was nothing that could be done about the Tribunal decision.
[5]In 2017 I sought migration advice during the bridging visa process with the Department of Immigration. I was told about a Federal Court case called SZVBN relating to children who had been members of the family unit in a protection visa application made by their mother. I then instructed my current legal representative to act for my children arguing SZVBN in the Federal Circuit Court. The court reference was CTU17 & Ors (SYG 1980/17). On 28 February 2019 the Federal Circuit Court of Australia allowed the application and the Minister appealed and we are awaiting a hearing date.
Proposed Substantive Ground
At the hearing in this Court, when Mr Prince S.C. with Mr Bodisco of Counsel appeared for the Applicants and Mr Swan of Counsel appeared for the Minister, the Applicants relied upon the following proposed substantive Ground:
1. The Tribunal fell into jurisdictional error in concluding that the review application was out of time and that it had no jurisdiction to consider the review application.
Particulars
a. The department’s notification of refusal of the protection visa dated 29 June 2011 did not state the exact date that the applicant had to make an application to the Tribunal by to be in time;
b. The requirement in s66(2) of the Migration Act 1958 (Cth) that a notification of a visa refusal must state the time in which the application for review may be made should be interpreted as requiring that the notification must clearly convey the period in review may be sought, therefore on or before 5 August 2011;
c. As the notification did not state 5 August 2011 as the final day to make an application to the Tribunal the notification failed to comply with s66(2) of the Act and time had not yet commenced to run; and
d. The Tribunal had jurisdiction to consider the review application lodged on 12 August 2011 and as a consequence, the applicants bridging visas did not expire.
Consideration
In considering whether or not it is in the interests of the administration of justice to grant an extension of time the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account. Those factors include:
a) whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay;
b) whether there is any prejudice to the Minister; and
c) whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success.
In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success, I ought not travel beyond an examination of the proposed substantive Ground on a “reasonably impressionistic level”. In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 Mortimer J said at 597 – 598 [62] – [63], with respect to applications for an extension of time under s.477(2) of the Act, as follows:
[62] As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[63] The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
Further, as Burley J in BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 said at [17]:
[17]In considering whether an extension of time should be granted, the Court usually has regard to the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal. These factors are considered together and assist in arriving at a conclusion as to whether it is in the interests of justice for the extension of time to be granted. It is seldom in the interests of justice for an extension to be granted where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the impact on other litigants who are waiting to have their cases heard. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 (MZABP) at [62]-[63] (per Mortimer J); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].
In my view the delay of nearly seven and a half years is so extreme, extraordinary and inordinate that it immediately raises the prospect that such delay in and of itself militates against any extension being granted. I have been unable to find any case in the area of migration law where a party has sought an extension of time, either under s.477(2) of the Act or any other type of extension, which involved a delay approaching seven and a half years. In Vella v Minister for Immigration & Border Protection (2015) 326 ALR 391 Gageler J was dealing with a 16 month delay, and said at 392 [3] that “given the length of the extension sought” he would only reach the state of satisfaction that it was in the interests of the administration of justice to grant an extension of time if he were persuaded that the proposed case was “exceptional”.
In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (Marks) at 495 [13] and 495 – 496 [16] McHugh J said that a case would need to be “exceptional” when the extension sought was for “many months”.
In Tran v Minister for Immigration and Border Protection [2014] FCA 533 Wigney J in the Federal Court of Australia was considering an application for extension of time of almost 18 months and said at [38]:
[38]The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.
In AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 Bromwich J had before him circumstances where there had been a delay of a year between the decision of the Tribunal and the application to the Federal Circuit Court for judicial review and a seven month delay between the decision of the Federal Circuit Court and the filing of an originating application in the Federal Court. In these circumstances Bromwich J said at [57] – [58]:
[57]In some cases, even when there has been an express finding by a court of jurisdictional error such as by way of denial of procedural fairness, sufficient or extreme delay or other like conduct and the absence of any acceptable explanation for it may be a sufficient reason alone to deny the grant of discretionary relief under s 39B of the Judiciary Act: see NAUV v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 124 ; (2004) 82 ALD 784 [38]–[45] (special leave to appeal refused: NAUV v MIMIA [2005] HCATrans 96); see also SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294 at 322–4 [79]–[84].
[58]Thus if the claim of jurisdictional error is at best questionable and the delay is both substantial (for example, well outside a statutory time limit, or concerning a case below in which there has been such a delay) and without any real explanation, let alone a satisfactory explanation, that will tend to support declining to exercise a discretion to intervene.
In Bernard v Minister for ImmigrationCitizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187 McKerracher J, in refusing an extension of time application for an application made some two and a half years out of time, said at [26] – [28] as follows:
[26]The history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if an extension of time is granted or refused is usually relevant as noted in Gallo v Dawson (1999) 64 ALJR 458 (at 459). Nonetheless, in Tran v Minister for Immigration and Border Protection [2014] FCA 533 (at [38]), Wigney J noted that the absence of any satisfactory, let alone persuasive, explanation for significant delay would itself be a sufficient basis to refuse the application for an extension of time. In that case the delay was only 18 months.
[27]Importantly, in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (at 474), McHugh J noted that a case ‘would need to be exceptional’ before the time for commencing proceedings was enlarged by even many months. His Honour also emphasised in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (at 553-554) that an applicant for an extension of time has the positive burden of demonstrating that the justice of the case requires that extension. It would require an exceptional case before an extension of time would be granted in a circumstances where a delay of 2 and a half years has occurred as against a limitation period selected by Parliament of 35 days.
[28]In my view, the length of the delay here is of such an extreme duration that the merits of the application for an extension of time would have to be particularly obvious to overcome the delay. Were a mere ‘arguable case’ sufficient to outweigh a significant and extensive delay, then limitation periods would be deprived of any meaningful effect. It was noted by McHugh J in Brisbane South where the period selected by Parliament as the appropriate limitation period is exceeded, that limitation period ‘may often result in a good cause of action being defeated’ (at 553).
Finally, in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 451 Madgwick J, in considering a delay of five years in seeking judicial review with respect to a decision of the Tribunal, said at [21] as follows:
[21]In all these circumstances, in my opinion it would be quite wrong, even if the applicant has a good case on its merits for constitutional relief and notwithstanding the possible importance of the case to him, to sanction such a long and poorly explained delay. Where there is a formal time limit, I would not extend time to permit him to claim the relief sought. Further, I would as a matter of discretion decline, on the ground of the applicant’s long and unsatisfactorily explained delay, to grant any relief to which he might otherwise be entitled.
In my view in this case not only is the delay extreme, but there is no reasonable or satisfactory explanation for the delay. The attempted explanation is twofold, namely that:
a)each time the First Applicant sought migration advice he “was told that there was nothing that could be done about the Tribunal decision”: see [25[4]] above; and
b)the delivery of the decision of the Full Federal Court in DFQ17: see [13] and [24] above.
With reference to the first identified explanation, it is inadequate and uninformative to the point of being cavalier. There has been no explanation by the First Applicant as to when he sought migration advice, who he approached for migration advice, the period of time over which he sought migration advice or any detail as to the nature of the migration advice he received.
On the basis of the evidence that the First Applicant has given I infer that he consciously accepted that the decision of the Tribunal was correct and that the Tribunal was in truth without jurisdiction. Such advice would have been consistent with his own early appreciation that his merits review application had been lodged out of time with the Tribunal and the likely problems which might thereby be caused for him: see [20] and [22] above.
It is further pertinent to record that the First and Second Applicants both speak, read and write the English language, with the First Applicant prior to the lodging of the Protection visa application having held the rank of Constable in the Fiji Police Force for 12 years and having been a shop assistant in Woolworths in Sydney here in Australia for three years and the Second Applicant having been a Registered Nurse in Fiji, holding a Diploma in Nursing and a Certificate in Computing. As such they were better equipped than many applicants for Protection visas to look after and advance their interests in an efficient and timely manner.
I infer that the First Applicant at all material times consciously accepted the correctness of the Tribunal’s decision and elected not to challenge it in this Court, and as pointed out by McHugh in Marks at 496 [17], “An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari”.
Finally, it is apposite to record what McHugh J stated at 495 – 496 [15] – [16] of Marks:
[15] An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties...
[16]Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay… The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.
The second identified basis for the extension of time is also unpersuasive. In my view it goes against all proper principles relating to the finality of litigation that a party, such as the First Applicant here, should be entitled to ignore a limitation period for some seven and a half years and then turn around and seek to avail himself of a legal decision, such as DFQ17, which is perceived to give some colour of support to an argument that the Tribunal’s decision was legally wrong.
At [19] of its Decision Record the Tribunal specifically found that the content of the Notification Letter “complied with the requirements of s.66(2)” of the Act. This finding squarely raised for challenge by the First Applicant the compliance of the Notification Letter with s.66(2)(d). It is not legitimate for the First Applicant to fail to challenge that finding within the time prescribed by s.477(1) and to wait seven and a half years and then to belatedly seek to do so based on DFQ17. I reject Mr Prince’s submission at the hearing that the delivery of DFQ17 on 18 April 2019 “radically changed the position in a way that hadn’t been seen before, and that is a proper and responsible explanation for the delay”.
I note that it does not appear that there would be any direct and actual prejudice to the Minister if an extension of time were granted. However, the absence of prejudice to the Minister is not in itself sufficient justification for an extension of time: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. Further, “there is a clear public interest in the prompt disposition of allegations that officers of the Commonwealth have acted in excess of, or have failed to exercise, their jurisdiction under statute” per Jessup J in MZABO v Minister for Immigration and Border Protection [2016] FCA 980 at [5]. As McHugh J said in Marks at 495 [15] in relation to proceedings in which constitutional or prerogative writs are sought, “the public interest requires that there be an end to litigation about the efficacy of such acts or decisions” sought to be challenged. In my view, having regard to the length of delay under consideration here, the lack of direct and actual prejudice to the Minister is an inconsequential factor.
It follows that in the circumstances of this case I consider that to grant an extension of time would eviscerate the intended force and effect of s.477(2) of the Act and fly “in the teeth of the statute”, to adopt an old but apt expression from another area of law: Pipikos v Trayans (2018) 265 CLR 522 at 572 [130].
Accordingly, I conclude that it is not in the interests of the administration of justice to extend the time to bring this proceeding. Rather, to grant such an extension would be to bring the administration of justice into disrepute and the application for extension will be dismissed.
Proposed Substantive Ground
Nevertheless, for completeness I note that the proposed substantive Ground has no reasonable prospects of success. In DFQ17 the Full Court of the Federal Court of Australia comprised of Rares, Perram and Farrell JJ determined that the notification letter to a visa applicant advising of the refusal of a Protection visa by a Delegate must be complete and clear to meet the requirement of s.66(2)(d)(ii) of the Act to “state the time in which the application for review may be made” to the Tribunal. In DFQ17 the relevant notification letter was found to be “piecemeal, entirely obscure and essentially incomprehensible” (DFQ17 at [62]) because the requisite information had to be viewed and assembled across three pages of the notification letter.
In the case reported as BMY18 v Minister for Home Affairs (2019) 271 FCR 517 (BMY18) the Full Court comprised of Reeves, Perram and Charlesworth JJ considered two appeals referred to as BMY18 and BOQ15 concerning different notification letters under s.66(2) of the Act. In BMY18 the Full Court, following DFQ17, held that the notification letter which had been forwarded to the applicant by email lacked clarity because it required the reader to assemble information from scattered and disparate parts of the letter.
However, in BOQ15 the Full Court considered that the notification letter under consideration, which had been sent by registered post, was valid and complied with s.66 of the Act because the layout of the letter was not confusing and it was accurate and comprehensible. The relevant portion of the notification letter under consideration in BOQ15 was extracted as follows in BMY18 at 523 [17]:
[17]The relevant portion of the notification letter said this:
Review rights
No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Refugee Review Tribunal (RRT) for a review of this decision. An application for review of this refusal decision must be given to the RRT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.
As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.
It will be immediately seen by a comparison on the one hand of the above section of the notification letter under consideration in BOQ15 which was held to be clear and comprehensible, with the equivalent section on the other hand of the Notification Letter extracted and emphasised at [11] above, that they are virtually exactly the same.
By way of apparent emphasis, the second paragraph of the section of the Notification Letter extracted at [12] above repeated verbatim the last paragraph of the Review Rights section of the Notification Letter extracted at [11] above and the last part of the Review Rights section of the notification letter considered in BOQ15.
Whether or not a notification letter meets the requirement of s.66(2)(d)(ii) of the Act is a question of fact: Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 at [10] per Thawley J with the concurrence of Flick and Bromwich JJ. In my view the Notification Letter did “clearly convey” the time in which the First Applicant’s merits review application could validly be made and there was compliance with s.66(2)(d)(ii). The Notification Letter was not “piecemeal, entirely obscure and essentially incomprehensible”.
The proposed substantive Ground in its terms contends that the effect of s.66(2) of the Act is to require the Notification Letter to state the exact date by which the First Applicant had to make his merits review application to the Tribunal. This contention was also pressed at [11], [12] and [17] of Mr Prince’s Written Submissions, in the following terms:
[11]The applicant submits that the error in the department's notification of refusal of the protection visa to the first applicant dated 29 June 2019 did not state the exact date that the application to the Tribunal had to be made to be on time being 5 August 2011.
[12]The requirement in s66(2) of the Act requires that a notification of a visa refusal must state the time in which the application for the review may be made should be interpreted as requiring the notification must clearly convey the period in review may be sought, therefore on or before 5 August 2011.
[17]As the letter dated 29 June 2011 did not state 5 August 2011 as the final day to make an application to the Tribunal and/or failed to make clear the time for lodging an application for Review and accordingly the letter failed to comply with s66(2) of the Act and time has not yet commenced to run as the notification was not valid.
I note that it became common ground that in truth and in fact under the statutory regime the First Applicant’s time period to lodge his merits review application ended on 4 August 2011 rather than 5 August 2011, but in the circumstances nothing turns on this.
At the hearing Mr Prince resiled from the contention that an actual or specific date was required to be so nominated in the Notification Letter. In my view he was correct to do so because it is not a requirement of s.66(2) of the Act that an actual or specific date be stated, having regard to the following statement reported in BMY18 at 523 [19] with respect to the notification letter under consideration in BOQ15:
[19]That is not the case here [i.e. incomprehensibility]. It is possible to determine the time within which the review application may be brought. The layout is not confusing. The complexity which exists is not the fault of the author of the letter but is a result of the terms of the statute itself. Whilst it might well be more useful for such letters actually to state the date by which the review application must be made this is not what s 66(2)(d)(ii) requires which is instead that the notification should state “the time in which the application for review may be made”. This is a reference to a period and not a date.
Further, his Honour Judge Kendall of this Court in CZI18 v Minister for Home Affairs [2019] FCCA 2080 expressed the view that a notification letter did not need to expressly state the date by which an applicant had to apply to the Tribunal for review, stating at [52] – [54] as follows:
[52]The Court questioned whether DFQ17implied, or stood for the proposition, that the notification letter should expressly state the date by which the applicant has to apply for the Tribunal to review the delegate’s decision.
[53]The Minister submitted that DFQ17 did not stand for that proposition. Rather, DFQ17 simply requires that the notification letter be expressed with clarity sufficient for a person to “calculate” the filing date required. The individual still has the responsibility to determine when the review is to be lodged but must not be hindered in that regard by a letter whose content is obscure and essentially incomprehensible.
[54]The Court agrees. Reading the entirety of Perram J’s decision in DFQ17, it cannot be said that the decision stands for the proposition that the filing date must be expressly provided. While doing so might be preferable (and arguably straightforward as an administrative exercise), this approach is not legally required.
At the hearing Mr Prince also contended that “the inter-position without any explanation or elucidation of working days and calendar days is apt to mislead”.
However, in my view there is nothing unclear about the use of the words “days” and “working days” under the heading “Review Rights” in the Notification Letter. The word “day” in the reference there to “28 days” is a reference to any day in the calendar year and thus could also be described as a “calendar day” which is a 24 hour period from one midnight to the following midnight within the calendar of any particular year, and inclusive of such days as public holidays and Saturday and Sunday. On the other hand, a “working day” is defined in s.5(1) of the Act (see [19] above) and that definition is expressly stated in the last paragraph under the heading “Review Rights” in the Notification Letter. Any complexity results from the terms of the migration legislation itself, rather than the author of the Notification Letter: BMY18 at 523 [19], reproduced at [55] above.
Finally, Mr Swan relied on the terms of the Brochure attached to the Notification Letter (see [9] above) as buttressing the clarity of the Notification Letter. As I have found that the Notification Letter in its own terms is appropriately clear, I do not consider it necessary for me to consider either the terms of the Brochure or the extent, if any, to which recourse might otherwise be had to such a brochure to establish compliance with s.66(2)(d)(ii) of the Act.
Conclusion
For the above reasons the application for extension of time is to be dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 10 September 2020
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