Caf20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1527
•7 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CAF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1527
File number(s): PEG 134 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 7 July 2021 Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – Safe Haven Enterprise (Subclass 790) Visa – proposed grounds of review
PRACTICE AND PROCEDURE – extension of time – factors – whether substantial delay – whether explanation for delay satisfactory – whether prejudice – whether proposed grounds of review have merit – where notices sent to applicant’s last known notified address
Legislation: Migration Act 1958 (Cth) ss 65, 379A, 473CA, 473CB, 473DA, 473DC, 473DD, 473DE, 473FB, 473HB, 473HD, 476, 477
Migration Regulations 1994 (Cth) reg 4.42
Cases cited: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
BBI18 v Minister for Home Affairs [2020] FCA 84
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1
BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
EMT18 v Minister for Home Affairs [2019] FCA 1501
EMT18 v Minister for Home Affairs [2019] FCCA 660
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185
Khan v Minister for Immigration and Border Protection [2015] FCA 125
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; (2021) 95 ALR 292
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203
Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
Somjich v Minister for Home Affairs [2019] FCA 1921; (2019) 168 ALD 219
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZTES v Minister for Immigration & Border Protection [2015] FCA 719
SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158
Tran v Minister for Immigration & Border Protection [2014] FCA 533
WZANW v Minister for Immigration & Anor [2009] FMCA 1075
WZASQ v Minister for Immigration & Anor [2013] FCCA 1726
WZAWB v Minister for Immigration & Anor [2016] FCCA 1345; (2016) 309 FLR 398
Number of paragraphs: 54 Date of last submissions: 5 July 2021 Date of hearing: 6 April and 5 July 2021 Place: Perth Applicant: In person (with the assistance of an interpreter) Counsel for the First Respondent: Ms G Ellis Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearances, save as to costs ORDERS
PEG 134 of 2020 BETWEEN: CAF20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
7 JULY 2021
THE COURT ORDERS THAT:
1.The applicant’s application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to file an application under s 476 of the Migration Act 1958 (Cth) be dismissed.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 27 April 2020 the applicant lodged an extension of time application pursuant to s 477 of the Migration Act 1958 (Cth) (“Migration Act”) (“Extension of Time Application”) in which to file an application for judicial review pursuant to s 476 of the Migration Act (“Proposed Judicial Review Application”). The Proposed Judicial Review Application seeks review of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively). The IAA affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse the applicant a Safe Haven Enterprise (Subclass 790) Visa (“Safe Haven Visa”) under s 65 of the Migration Act.
The matter first came before the Court on 6 April 2021 (“First Hearing”) at which time it was adjourned to a date to be fixed due to the Minister’s Written Submissions and the Court Book (“CB”) having been sent to the wrong email address by the Minister’s lawyers. The matter was re-listed for further hearing on 5 July 2021 (“Second Hearing”).
EXTENSION OF TIME APPLCIATION
The relevant background to the Extension of Time Application is as follows:
(a)on 17 March 2017 the applicant applied for the Safe Haven Visa: CB 20-62. The address provided in his application was in New South Wales (“NSW Address”);
(b)the IAA client contact list records that between 22 January 2019 and 9 January 2020 the applicant’s correspondence address was in Victoria (“Victorian Address”);
(c)the applicant informed the Department that from 22 January 2019 until 9 January 2020, he lived at the Victorian Address: CB 207;
(d)the Delegate’s Decision was sent to the applicant at the Victorian Address on 22 November 2019: CB 82-97;
(e)the matter was referred to the IAA on 17 December 2019, and an acknowledgement of this referral was mailed to the Victorian Address on 18 December 2019: CB 98-99;
(f)on 26 February 2019 the Department invited the applicant to attend an interview scheduled for 21 March 2019: CB 76-78. The invitation was sent via post to the Victorian Address, but the applicant did not respond to the invitation to attend the interview and did not attend the interview;
(g)on 26 September 2019 the Department invited the applicant to attend an interview scheduled for 21 October 2019: CB 79-81. The invitation was sent via post to the Victorian Address. The applicant did not respond to the invitation to attend the interview and did not attend the interview;
(h)on 22 November 2019 the Delegate refused to grant the applicant the Safe Haven Visa: CB 84-97. The notification of refusal was sent to the applicant by post to the Victorian Address: CB 82-83. On 20 December 2019, the Department stamped “Home Affairs Vic 20 Dec 2019” on an envelope with the Victorian Address on it with a “return to sender” sticker affixed dated 14 December 2019: Affidavit of Ellen Lucy Goldsworthy Tattersall, affirmed 22 March 2021, at [4] and Annexure ELGT-1;
(i)on 23 December 2019 the IAA wrote to the applicant and informed him that on 4 November 2019 the Department of Foreign Affairs and Trade (“DFAT”) had produced a new country report on Sri Lanka (“Updated DFAT Country Report”) which updated the report considered by the Delegate: CB 105-107. The applicant was invited to comment on information in the Updated DFAT Country Report that the IAA considered may be part of the reason for affirming the Delegate’s Decision. Detailed particulars of the information and a copy of the Updated DFAT Country Report were provided to the applicant by the IAA. The IAA sought the applicant’s comments by 20 January 2020. The letter was sent by post to the Victorian Address. The applicant did not respond to the invitation to comment;
(j)on 9 January 2020 the applicant sent an email to the Minister’s Department (not the IAA) updating his address to a location in Western Australia (“WA Address”) and also provided an email address (“WA Email Address”) for the receipt of correspondence: CB 182-187; and
(k)the IAA Decision was handed down on 28 January 2020 and was sent to the Victorian Address: CB 188-202.
The Extension of Time Application was filed in this Court on 27 April 2020, 90 days after the IAA Decision, and the Proposed Judicial Review Application is therefore 55 days outside of the time limit prescribed by s 477(1) of the Migration Act.
The grounds in the Extension of Time Application are as follows:
1.The Applicant was not notified of the decision of the Immigration Assessment Authority
2.The Applicant only received the Immigration assessment authority’s decision on 23 April 2020
At [2] in a three paragraph affidavit affirmed by the applicant on 24 April 2020 (‘Applicant’s Affidavit”), filed at the same time as the Extension of Time Application, the applicant says that the “decision of the Immigration Assessment Authority was not received by me until 23 Apr[il] 2020.”
Applicant’s Submissions
Prior to the First Hearing the applicant failed to file written submissions, contrary to the terms of an order of a Registrar of this Court dated 28 May 2020 which required written submissions to be filed 28 days before the First Hearing.
At the First Hearing, before it was adjourned, the applicant said no more than what he affirmed in the Applicant’s Affidavit, namely that he had not received the IAA Decision: First Hearing Transcript at p 2.
The applicant, having had the benefit of an almost three month adjournment, failed to file written submissions prior to the Second Hearing contrary to the terms of an order of the Court made at the First Hearing which required written submissions to be filed 14 days before the Second Hearing.
At the Second Hearing the applicant’s oral submissions:
(a)focussed in large part on what had occurred before the Delegate;
(b)effectively conceded that he had not updated his address details with the Secretary in a timely way, or at all with the IAA, and said at one point that he had “totally forgotten” to do so, saying that it was because of the “stress” of what was occurring in his then household and having to move house; and
(c)sought “another chance” to provide “correct details”, and an “explanation” of his situation as he could not go back to Sri Lanka.
Minister’s Submissions
The Minister opposes the Extension of Time Application because:
(a)of a moderate delay of 55 days;
(b)the mere absence of prejudice to the Minister is not a sufficient reason to grant the extension of time;
(c)it was for the applicant to ensure that the IAA had his correct address for service; and
(d)the proposed substantive grounds do not reveal sufficient merit to warrant the grant of an extension of time.
Consideration – Extension of Time Application
The Proposed Judicial Review Application is presently incompetent by virtue of s 477(1) of the Migration Act, and remains so unless the Court grants an extension of time pursuant to s 477(2) of the Migration Act. Section 477(2) of the Migration Act is as follows:
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In considering the law with respect to delay in making an application for judicial review under the Migration Act regard must be had to the judgments of the High Court in Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”), which, in summary, provide as follows:
(a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
(b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
(c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
(d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at 553 per McHugh J.
With the statements of principle above in mind, the factors the Court generally takes into account when determining whether to grant an extension of time pursuant to s 477(2) of the Migration Act are well established, but not closed, and can be summarised as follows:
(a)the extent of the delay
(b)the explanation for the delay;
(c)any prejudice that may be suffered; and
(d)the merits of the Proposed Judicial Review Application,
see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”).
Delay
Generally, “the longer the delay, the more persuasive the explanation needs to be”: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J; see also, Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ.
This Court has said that a delay of 54 days is likely to be fatal to an application for an extension of time where there is no reasonable explanation for the delay: WZANW v Minister for Immigration & Anor [2009] FMCA 1075 (“WZANW”) at [28] per Lucev FM; see also EMT18 v Minister for Home Affairs [2019] FCA 1501 at [29] per Rares J citing EMT18 v Minister for Home Affairs [2019] FCCA 660 at [3] per Judge Street, where a delay of 41 days was held to be “not insignificant” in circumstances where the explanation proffered was not satisfactory.
In this case the Court finds the 55 day delay to be substantial, and that it alone weighs significantly against an extension of time being granted.
Explanation
The applicant’s assertions as to what occurred before or in relation to the processes in relation to the Delegate’s Decision are irrelevant to the Extension of Time Application, because the Extension of Time Application relates to delay dating from the time of the IAA Decision.
The applicant’s concession that he had not updated his address details with the Secretary in a timely way, or at all with the IAA, and that he had “totally forgotten” to do so, because of the “stress” of what was occurring in the household and having to move house, does not provide any proper basis for an extension of time. These are normal human activities. The Applicant’s Affidavit provided no evidence of the alleged “stress” (indeed it does not even mention it) and there is otherwise no other evidence related to the alleged “stress” or any household moves or the reasons for those moves, save for the Minister’s Client Contact List (at CB 207) which does no more than record the dates of notification of change of address and the address notified. There is nothing in those bare details that assists the applicant’s argument.
The applicant’s explanation for the delay relevantly relies on his not having received the IAA Decision until 23 April 2020 because he no longer resided at the Victorian Address and because he notified the Minister of his move to the WA Address and of the WA Email Address.
The applicant provided updated contact details to the Minister, but not until 9 January 2020. The applicant is, however, taken to have received the notice of the Delegate’s Decision and the Acknowledgement of Referral to the IAA on 17 and 18 December 2019 respectively at his last known notified address, which was the Victorian Address: Migration Regulations 1994 (Cth) (“Migration Regulations”), reg 4.42(b)(iii). Further, and more importantly here, the evidence before the Court is that the applicant did reside at the Victorian Address at that time: CB 207. It is therefore reasonable to expect the applicant to communicate a change of correspondence address to the IAA in accordance with the Practice Direction attached to the Acknowledgement of Referral correspondence.
The applicant’s notified address at the time of referral to the IAA on 17 December 2019 was the Victorian Address and the Secretary of the Minster’s Department was required to pass on the information as to that address to the IAA as part of the review material: Migration Act, s 473CB(d)(i). At this time the applicant had only provided the Victorian Address, and no other contact details, to the Minister. As the Victorian Address was the last address for service notified to the IAA, the IAA were required to send all correspondence to the Victorian Address unless it was changed: Migration Act, s 473HB(5)(c)(i). The applicant notified the Minister that he had moved to the WA Address and of the WA Email Address on 9 January 2020, some three weeks after he was taken to have been notified of the Delegate’s Decision and the IAA referral. There is nothing in the Migration Act which requires the Secretary to pass this new information on to the IAA. Rather, the method of notification of a new address for service by an applicant may be specified by a Practice Direction of the President of the IAA pursuant to s 473FB(1) and (2) of the Migration Act. Beyond the statutory provisions in the Migration Act, there is no general obligation of procedural fairness requiring the Minister to forward the applicant’s new correspondence details to the IAA once the Minister has finished with the review and the matter has been validly transferred: Migration Act, ss 473CA, 473CB and 473DA; and compare Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; (2021) 95 ALR 292 at [22] per Steward J where it was held that a judge’s obligation to afford procedural fairness finished with the conclusion of a hearing. Here, any duty the Minister had to the applicant in respect of notified or notifiable addresses concluded with the transfer of the matter to the IAA.
The Court notes that the applicant is a native Tamil speaker and that he made submissions with the assistance of an interpreter. The applicant has been in Australia since at least January 2013: CB 15, and has been living in the community in Victoria, New South Wales and Western Australia since 8 July 2013: CB 207. The Applicant’s Affidavit says he is a “labourer”, which would indicate that he is, or was at the time of affirmation (24 April 2020), working. The applicant placed no particular reliance on such matters in his argument (although he did mention that he had been assisted by the “Tamil Association” in making the Extension of Time Application), and there is nothing about them which suggest to the Court that, in this case, these matters would have materially contributed to the relevant delay: see ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J.
The Court finds that the applicant’s explanation for the delay is not satisfactory, and weighs against an extension of time being granted, and especially so when taken together with 55 day delay.
Prejudice
The Minister’s written submissions did not assert any prejudice if the applicant is granted an extension of time, but notes, correctly, that an absence of prejudice is insufficient in itself to justify extending time: Hunter Valley Developments, FCR at 349 per Wilcox J.
At the Second Hearing the Minister agreed with a suggestion from the Court that, based on the usual principles in relation to extension of time applications, there was some prejudice to the Minister because the Minister had lost a vested right to retain the benefit of the IAA Decision on the expiry of the time limitation under s 477(1) of the Migration Act: Marks at [17] per McHugh J. As the Court observed in WZAWB v Minister for Immigration & Anor [2016] FCCA 1345; (2016) 309 FLR 398 at [109] per Judge Lucev:
There must be some prejudice arising from the fact that this is a case in respect of which the Minister might rightfully have thought that the litigation was at an end by reason of the extraordinary length of the delay in making the application. In traditional terms, the Minister is prejudiced by reason of the fact that he was entitled to consider that the fruits of the litigation were his. In those circumstances, there is additional prejudice by reason of the costs incurred as a consequence of this application.
In this case the Minister is further prejudiced by the costs and time thrown away by the adjourned hearing of 6 April 2021, in relation to which the applicant failed to take advantage of the opportunity which he sought, and which was afforded to him, to file further submissions.
In the present case prejudice is a factor which weighs, albeit slightly, against a grant of an extension of time.
Merits of the Proposed Judicial Review Application
The Proposed Judicial Review Application contains the following grounds of review:
1.The IAA failed to send the request for comments to me
2.The IAA failed to give a fair hearing by failing to send the requests for comments to the correct address
In determining whether the merits of the Proposed Judicial Review Application are arguable or have reasonable prospects of success, it is not necessary for the applicant to positively establish that the Proposed Judicial Review Application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J. In determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success the Court is only required to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether the applicant would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveals that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their or its merit: SZTES at [48] per Wigney J; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J (in a passage expressly approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] per Tracey, Perry and Charlesworth JJ).
The Tribunal Decision may be set aside on judicial review on the basis of jurisdictional error in relation to a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act:Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
Last address for notification and currency of contact details
Contrary to the applicant’s assertions, it is well established that it was for the applicant to ensure that the IAA had his correct address for service: Somjich v Minister for Home Affairs [2019] FCA 1921; (2019) 168 ALD 219 (“Somjich”) at [57] per Rangiah J, noting that ss 379A and 473HB of the Migration Act are in relevantly not dissimilar terms. In Somjich the applicant had sent emails direct to the decision-maker (in that case the Administrative Appeals Tribunal) from a Hotmail address, but which gave no clear indication that the Hotmail address, and not an earlier Gmail address for his agent previously provided, was to be used for service, and the Federal Court held that sending notifications to the Gmail address did not constitute a denial of procedural fairness: Somjich at [58]-[60] per Rangiah J.
The last address for service provided by the applicant to the Minister for the purposes of receiving documents before referral of the matter to the IAA was the Victorian Address. This address was therefore required to be provided by the Secretary to the IAA as part of the review material: Migration Act, s 473CB(d)(i). In turn, this required the IAA to send its correspondence to the applicant to the Victorian Address, it being the last address for service of the applicant provided to the IAA in connection with the review: Migration Act, s 473HB(5)(c)(i).
The Secretary committed no error on 17 December 2019 by providing the IAA with the Victorian Address for service of documents on the applicant as part of the review material. The “return to sender” notification was not received by the Department until 20 December 2019: Tattersall Affidavit at [4] and Annexure ELGT-1. Section 473CB(d)(iv) of the Migration Act provides that “if the Minister reasonably believes that the last such address [provided to the Minister by the applicant for the purposes of receiving documents] or number provided to the Minister is no longer correct”, the Secretary must provide “such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority”. At the time of the referral to the IAA, the Department had not received the “return to sender” notification, and there was, therefore, nothing unreasonable in the Secretary providing the Victorian Address to the IAA for the purposes of receipt of documents by the applicant. The Federal Court in BBI18 v Minister for Home Affairs [2020] FCA 84 at [18] per Greenwood J observed that (emphasis added):
Section 473CB(1)(d) is designed to put the IAA in the same informed position, as to current and accurate addresses for a referred applicant, as the Department and the Minister were in at the moment of referral of the refusal decision to the IAA. The provision is facilitative of accurate communication with the referred applicant.
In Khan v Minister for Immigration and Border Protection [2015] FCA 125 (“Khan”) at [12] per Collier J the Federal Court found no fault in this Court finding that the sending by the then Migration Review Tribunal of a letter to the address recorded for correspondence was entirely appropriate, notwithstanding that the address was that of a migration agent who had ceased to represent the applicant, and who had failed to pass on the letter to the applicant. In Khan at [21] per Collier J the Federal Court said as follows:
It was the responsibility of the applicant to ensure currency of his contact details, at least with the Tribunal.
An applicant must ensure that a decision-maker, here the IAA, has an applicant’s correct address for service. The Federal Court’s comments in Somjich at [57] per Rangiah J are particularly pertinent:
Plainly, it would be unworkable for the Tribunal to be required to track down an applicant’s whereabouts in order to comply with its obligation to provide the applicant with documents. As Collier J observed in Khan v Minister for Immigration and Border Protection [2015] FCA 125 at [21], s 379A(5) makes it the responsibility of an applicant to ensure the currency of their contact details. The purpose of s 379A(5) is both to place an onus [upon] the applicant to keep the Tribunal notified of his or her address for the receipt of documents and to allow the Tribunal to comply with its obligation to provide documents by sending them to the address provided.
In this case the applicant failed to inform the IAA of his current address for notification. The Migration Act did not require the Secretary to provide the applicant’s WA Address and WA Email Address, received from the applicant on 9 January 2020, that is, after the IAA referral, to the IAA, and no error, jurisdictional or otherwise, arises from it not doing so.
Incomplete details
The applicant failed to provide complete contact details to the Department in the Safe Haven Visa application. The applicant responded to only one of five questions about his contact details in the Safe Haven Visa application form: CB 36. That response was at question 37 where the applicant gave his “current residential address in Australia” as the NSW Address.
The applicant did not:
(a)provide his current postal address to the Department as requested at question 38, his telephone number as requested at question 39, or his email address as requested at question 40: CB 36; and
(b)did not advise whether he agreed to the Department contacting him via fax, email or electronic communication, as requested at question 41, noting that the application form has a “note” immediately below these questions to the effect that that electronic communication was the Department’s “preferred method of communication”: CB 36.
On 4 April 2017 the Department sent the applicant a letter to the NSW Address, and:
(a)requested that the applicant provide answers to the questions about his contact details that he had not completed, being questions 38 to 41 (amongst other things): CB 71. This was less than three-weeks after the applicant had submitted the Safe Haven Visa application form. The applicant did not respond to this request; and
(b)advised the applicant that he was required to tell the Department “as soon as possible” about any changes in his circumstances, including a change in contact details and address: CB 68.
The applicant advised the Department that between 22 January 2019 and 9 January 2020, he was living at the Victorian Address: CB 207. If the applicant ceased living at the Victorian Address before 9 January 2020 it was the applicant’s responsibility to inform the Department of that fact, and especially so as he had only ever provided a postal address for service.
The applicant has not claimed that he did not receive the IAA’s Acknowledgment of Referral Notice dated 18 December 2019 which was sent via post to the Victorian Address: CB 98-99. The fact that he attested in his affidavit to having received the IAA Decision further supports the contention that IAA’s Acknowledgment of Referral Notice was received by the applicant, which the applicant was, in any event, deemed to have received: Migration Act, ss 473HB(5) and 473HD(4).
The IAA’s Acknowledgment of Referral Notice expressly told the applicant to “tell [the IAA] immediately if you change your contact details such as your email address, residential address, mailing address or telephone number”, and also attached an IAA Practice Direction (see CB 100) which stated as follows (emphasis added):
7. Communication with us will be primarily by electronic means.
8. Where you give us an email address, all communication will generally be via email. Attachments to an email must be provided as Word documents or pdf files that can be opened and copied.
9. It is your responsibility to ensure that you give us a current email address and tell us immediately if your email address changes.
The IAA was empowered to make a Practice Direction dealing with an administrative or procedural issue such as notification of a current address: Migration Act, s 473FB(1) and (2).
In circumstances where:
(a)the applicant was required to provide an address for notification to the Secretary of the Department, and did so by providing the Victorian Address, prior to the IAA referral;
(b)the Secretary of the Department was required to provide to the IAA the last address for notification given to the Secretary, and did so, by providing the Victorian Address at the time of the IAA referral;
(c)the IAA sent correspondence, including the invitation to comment on the Updated DFAT Country Report and the IAA Decision to the address (that being the Victorian Address) provided by the applicant to the Secretary, and still current with the Secretary at the time of the IAA referral;
(d)the applicant provided further contact details (being the WA Address and the WA Email Address) to the Secretary, but not to the IAA,
there was, for the reasons set out at [32]-[44] above, no obviously discernible jurisdictional error in the IAA sending the invitation to comment on the Updated DFAT Country Report to the Victorian Address.
Limited procedural fairness obligations
The IAA was obliged to review the Delegate’s Decision by considering the review material without accepting or requesting new information and without interviewing the applicant: Migration Act, s 473DB(1); DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [69] per Reeves, Robertson and Rangiah JJ. The IAA was not obliged under s 473DE of the Migration Act to give the applicant an opportunity to comment on the Updated DFAT Country Report. Section 473DE(1) of the Migration Act did not apply to new information which, amongst other things, was not specifically about the applicant, but rather was about a class of persons of which the applicant was a member: Migration Act, s 473DE(3). The IAA had the power to obtain this new information under s 473DC of the Migration Act. In issuing an invitation to comment on the Updated DFAT Country Report, the IAA went beyond the natural justice obligations it was required to meet under the Migration Act. The IAA, having obtained the new information, could only consider the new information if it was satisfied that the requirements of s 473DD of the Migration Act were met in relation to it. The IAA considered there were exceptional circumstances to obtain and consider the Updated DFAT Country Report as it contained current information on the situation for people in Sri Lanka with a profile similar to that of the applicant: CB 190 at [3]. The IAA therefore concluded that the requirements of s 473DD(a) of the Migration Act were satisfied, and this was the only relevant provision that needed to be satisfied, given that the new information was not provided by the applicant.
In the circumstances there was no obviously discernible denial of procedural fairness, and therefore no obviously discernible jurisdictional error, in relation to the provision of the invitation to comment on the Updated DFAT Country Report by the IAA, or the making of the IAA Decision.
Invitation to comment within prescribed period
The invitation to comment was issued under s 473DC of the Migration Act. The applicant’s comments were therefore to be given within a period prescribed by regulation and specified in the invitation to comment: Migration Act, s 473DF(2). For the purposes of s 473DF(2) of the Migration Act, reg 4.42(b)(iii) of the Migration Regulations prescribed the period for responding to an invitation to comment, that being 14 days after the applicant was notified of the invitation to comment. The applicant was deemed to have been notified of the invitation seven working days after the date of the invitation to comment: Migration Act, ss 473HB(5) and 473HD(4). The IAA correctly specified that the applicant’s comments must be received by the IAA by 20 January 2020. When the applicant failed to respond to the invitation to comment by 28 January 2020 the IAA was entitled to make the IAA Decision, as it did: Migration Act, s 473DF(4)(a).
In the above circumstances there was no obviously discernible jurisdictional error, in relation to the provision of the prescribed period within which the applicant was required to respond to the invitation to comment on the Updated DFAT Country Report.
Conclusion on merits of the Proposed Judicial Review Application
For the reasons set out at [12]-[49] above the grounds of the Proposed Judicial Review Application do not have sufficiently arguable merit to warrant the grant of the Extension of Time Application.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)the length of the delay (55 days) is such in this case that the delay alone is a sufficient basis for dismissal of the Extension of Time Application; and
(b)even if the length of the delay alone was not enough to warrant the dismissal of the Extension of Time Application, the effect of a consideration of the other factors to be considered in relation to the Extension of time Application, including the want of a proper explanation for the delay and the failure of the applicant to make out that the grounds of the Proposed Judicial Review Application give rise to any obviously discernible jurisdictional error and are therefore unlikely to have any reasonable prospect of success, leads to the same result, and the Court should not therefore extend time for the making of the Proposed Judicial Review Application.
It follows that there will be an order that the Extension of Time Application be dismissed.
Because the Extension of Time Application has been dismissed it is unnecessary to make a further order that the Proposed Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at 92 [43] per Foster J; WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [34] per Judge Lucev.
The Court will hear the parties as to costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 7 July 2021
2
31
0