BYF16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 377
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYF16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 377
File number(s): MLG 578 of 2021 Judgment of: JUDGE MANSINI Date of judgment: 17 May 2023 Catchwords: MIGRATION – Second application for judicial review of decision of the Administrative Appeals Tribunal – where first application was dismissed and appeal of that first dismissal decision was filed late and refused – where second application lodged 1,686 days out of time – where first applicant claimed the delay was because they had just found out about the Tribunal’s decision – first applicant accepted the substantive application for judicial review was made on same grounds as first application.
Findings that the reasons for the inordinate delay in filing the second judicial review application are not acceptable, reasonable or credible – substantive application for judicial review subject to questions of estoppel and abuse of process and of no merit – application dismissed with costs.
Legislation: Migration Act 1958 (Cth) ss.65, 477(1), 477(2) Cases cited: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193
BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483
CTF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 309
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Walton v Gardiner [1993] HCA 77
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v MIBP [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 11 May 2023 Place: Melbourne The First Applicant: Appeared in person The Second Applicant No appearance Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 578 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYF16
First Applicant
BYG16
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
17 MAY 2023
THE COURT ORDERS THAT:
1.The application for an extension of time made on 31 March 2021 is refused.
2.The Applicants 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 Mansini
IN SUMMARY
Before the Court is an application seeking an extension of time under s.477(2) of the Migration Act 1958 (Cth) (Act) to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). In that decision the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the First Applicant (and her son, as a member of her family unit) a Protection (Class XA) visa, pursuant to s.65 of the Act.
The application was filed 1,686 days after the expiry of the statutory timeframe. Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is refused. The reasons for this decision follow.
Relevant factual context
The Applicants are mother and son, both citizens of Malaysia. They arrived in Australia on 9 February 2011 on a Visitor (Subclass 976) visa.
On 4 September 2014, the First Applicant made an application for a Protection (Class XA) visa (protection visa) and named the Second Applicant as included in the application.
On 4 December 2014, a delegate of the First Respondent Minister decided to refuse the protection visa application.
On 12 July 2016, the Tribunal confirmed its decision to dismiss the Applicants’ application for review of the delegate’s decision.
On 22 July 2016, the Applicants applied to the Federal Circuit Court (as this Court was then known) for judicial review of the Tribunal’s decision (the first judicial review application). The first judicial review application was dismissed by order of another Judge with an order that the Applicants pay the First Respondent’s costs in the sum of $7,467 (the dismissal decision).
On 6 June 2019, the Applicants applied to the Federal Court of Australia for an extension of the time within which to appeal the dismissal decision. The appeal was filed 19 days out of time. The application for an extension of the time in which to appeal was refused with an order that the Applicants pay the First Respondent’s costs of and incidental to the application (appeal decision).
On 29 March 2021, the Applicants attempted to lodge another application for judicial review of the Tribunal’s decision (the second judicial review application). The second judicial review application included a request for an extension of time. An affidavit of the First Applicant sworn on 18 March 2021 was filed that same day and repeated the grounds specified in the application. These documents were accepted for filing by the Court’s registry on 31 March 2021.
On 6 April 2021, a response was filed on behalf of the First Respondent.
On 21 February 2023, following a procedural “call over”, procedural orders were made by a Registrar of this Court that: the name of the First Respondent Minister be amended to Minister for Immigration, Citizenship and Multicultural Affairs; the matter be listed for hearing of the application for an extension of time on a date to be advised and filing directions were issued.
On 7 March 2023, the First Respondent filed a Court Book.
On 9 March 2023, the parties were notified that the matter was listed for hearing on 11 May 2023 before another Judge of this Court.
On 20 and 21 April 2023, the First Respondent filed an outline of written submissions and an affidavit of service.
On 27 April 2023, the parties were notified by my chambers that the application for an extension of time in which to file the second judicial review application would be heard before the Court as presently constituted (at the same time and date as originally listed).
At the hearing on 11 May 2023, the Applicant appeared in person with the assistance of an interpreter. The First Respondent was represented by a solicitor advocate.
At the time of the hearing and these reasons, the Applicants had not filed any further evidence or submissions in accordance with the procedural orders or otherwise.
APPLICATION FOR AN EXTENSION OF TIME
Was the application filed late?
Under s.477(1) of the Act, any application to this Court is to be filed within 35 days of the date of the Tribunal’s decision.
An application for judicial review in this Court was due to be filed by 16 August 2016. Not being accepted for filing in accordance with the Federal Circuit Court Rules 2021 (as then it was enforced) until 31 March 2021, this application for an extension of time was filed 1,688 days after the expiry of the statutory timeframe.
Should the Court be satisfied to make an order extending time?
Section 477(2) of the Act provides that the Court may grant an extension of the 35-day period within which an application must be made if satisfied that it is necessary in the interests of the administration of justice to make the order.
The statute does not specify particular criteria which must be satisfied to establish the sole mandatory consideration that it is in the “interests of the administration of justice” to grant such an extension.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision:
Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
See also: Katoa at [35], [39] and [62] (Gordon, Edelman and Steward JJ); AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [10]; BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 at [17].
Although it is often appropriate to assess merits at a “reasonably impressionistic level” or at a “threshold level” in terms of whether the proposed ground(s) “enjoy[s] reasonable prospects of success”, the High Court in Katoa held that it is within the Court’s jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]-[19]. For example, at [18]:
If the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
By the application in the present matter, the Applicants specified one ground as to why they considered it necessary in the interests of the administration of justice to make the order for an extension of time, as follows:
I lodged the AAT application with respect to the refusal decision of protection visa for my son and me. I thought my application was lodged with AAT successfully. I have not heard from AAT since then. I thought my case is under processing and I was waiting for the decision. I did not think AAT should dismiss my this application because I have not receive anything relation to interview or invitation to comment on my case. I have no idea the case has been processed. The AAT not only dismissed my application without sending me an email but also, I mistakenly think my case was under processing which let me fall behind so long so badly. I just found out about the AAT decision recently. My judicial review rights have been passed already; I have no other choice but apply for an extension of time.
(sic.)
As for the substantive application, the Applicants raised two grounds of review, as follows:
1.AAT made a judgment error regard to our protection visa refusal case on 12 July 2016. I read through the decision record carefully, and I found the decision has been made without the correct procedure. The case officer said, AAT scheduled the hearing on 27 Jun 2016 and wrote me a letter inviting me to reinstate the application within 14 days
AAT for explaining my case. However, I never received the invitation from AAT at the time. AAT dismissed my application without receiving any information from me. The decision is inappropriate and AAT should reassess my case and give me a chance to respond to their procedural
2.The AAT officer made another judgment error that they assumed the letter had been sent to me without confirming whether I have received it or not. Such ignorance of the applicant’s right should not appear on AAT. I believe the AAT should make confirmation before they make the decision. Otherwise, applicant like me will only fall into a disadvantaged situation without getting help from AAT. Therefore I believe AAT should re-considering their assessment procedure and make a sensible reform to serve the best interests of their applicants.
(sic.)
At the hearing of the matter, the First Applicant was afforded an explanation of the process and an adjournment in order to consider the First Respondent’s submissions (which she confirmed she had previously received, by email) with the benefit of the interpreter arranged by the Court.
Following that adjournment, the Court asked the Applicant to address her request for an extension of time in which to file the second judicial review application and was asked a series of questions by the Court in an effort to better understand and assist her to articulate her case (her relevant responses are outlined further below).
I turn now to consider this application in light of the factors about which the Court was addressed as relevant to the exercise of the discretion.
Delay and explanation
In this case the period of delay was 1,688 days.
The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: see, WZASQ v MIBP [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of a long delay: Tran, at [38].
In the present case, the Applicant’s reason for the delay was articulated in the First Applicant’s affidavit of 18 March 2016. Of that evidence, the only discernible “reason” was expressed in terms that she “had just found out about the Tribunal decision”. The affidavit included other statements about material not having been received as part of the Tribunal’s process in hearing and determining the application for review of the delegate’s decision.
At the hearing before the Court as presently constituted, the First Applicant was taken to the earlier Court decisions cited above and in response she confirmed that:
(a)Both the first dismissal decision and the attempted appeal of the first dismissal decision related to the same Tribunal decision of 12 July 2016 that is subject of this second judicial review application; and
(b)The First Applicant had appeared at the hearing of the first judicial review application but could not recall whether she had appeared at the extension of time (in the appeal) hearing in the Federal Court (as the Federal Court decision would indicate).
Also at the hearing, the First Applicant told the Court that she had nothing else to say about the reasons for the delay in filing this second judicial review application.
The only discernible explanation for the Applicants’ delay in filing this second judicial review application is that she had just found out about the Tribunal decision at the time of completing the application form commencing this proceeding (which was dated 18 March 2021, being some 10 days prior to the first attempt at filing the second judicial review application). As I explained to the First Applicant at the hearing, it is difficult for the Court to accept this explanation for the delay because by then she had made an attempt at review and an attempt at appeal.
Indeed on the materials before the Court, the Applicants filed the first judicial review application, in relation to the same Tribunal decision, some years prior on 22 July 2016. The first judicial review application was filed within the 35-day timeframe proscribed by the statute.
In the circumstances, I do not accept the Applicants’ explanation as an acceptable, reasonable or credible reason for the inordinate delay in the present case. This is a factor that weighs strongly against the grant of an extension of the time for filing the second judicial review application.
Prejudice to the respondent
The First Respondent did not contend to suffer any particular prejudice subsequent to the second application for judicial review. However, there is an obvious prejudice to the First Respondent in having to re-litigate a proceeding that has been determined as unmeritorious. I have considered that the Applicants are unrepresented but am of the view this would not justify their conduct in occasioning such prejudice.
The prejudice suffered by the First Respondent is a matter that weighs against the grant of an extension of the time for filing the second judicial review application.
Merit of the second judicial review application
The time limitation reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a decision of the Tribunal. While the discretion of the Court is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.
The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the grounds available to the Applicant are reasonably arguable.
Issues of estoppel and abuse of process may arise where it would be unjustifiably vexatious and oppressive for the re-litigation of a case which has already been disposed of by earlier proceedings: see, CTF v Minister for Immigration,Citizenship and Multicultural Affairs [2023] FedCFamC2G 309 at [36] citing Walton v Gardiner [1993] HCA 77 at [23].
The grounds of this second judicial review application complain of the Tribunal’s alleged failure to adopt the correct procedure because the Applicants did not receive the invitations (to attend the Tribunal hearing and/or apply for reinstatement) and did not confirm the Applicants had received the Tribunal’s letter. The procedure adopted by the Tribunal is relevantly and thoroughly addressed in the reasons of the first dismissal decision and the appeal decision and need not be repeated here.
At the hearing before this Court, the First Applicant told the Court that the alleged error(s) complained of in the present application is “pretty much the same” as that in the first judicial review application. She could not identify or explain any differences to the Court. An analysis of the two grounds of the substantive second application for judicial review does not disclose any apparent or meaningful difference between the issues raised in this second application for judicial review and those that were considered and determined in the first dismissal decision and the appeal decision.
The Applicants’ complaint(s) of jurisdictional error have previously been litigated and, to the extent that the grounds of review are not identical or sought to extend beyond that subject of the first judicial review application, otherwise raise a claim or an issue of fact or law which is so closely connected with the subject matter of the first proceeding as to render it unreasonable not to have been raised in the first proceeding.
In my view, the substantive application would not overcome valid arguments of estoppel (and, or in the alternative, abuse of the Court’s process). In any event, there is no jurisdictional error established by this second judicial review application or apparent on the face of the Tribunal’s decision.
CONCLUSION
The application in this case being 1,688 days outside the statutory timeframe, the Court may only grant an extension of the time within which the application was to be made if satisfied such extension is in the interests of the administration of justice.
Weighing all of the considerations above, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The application will be refused with costs in the amount of $4,189.38.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 17 May 2023
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