CBO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 210
•19 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CBO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 210
File number: SYG 1148 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 19 February 2025 Catchwords: MIGRATION – Administrative Appeals Tribunal –Protection (class XA) (subclass 866) visa – application for an extension of time granted – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 425, 425A, 426A, 426B, 477 Cases cited: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Kumar v Minister for Home Affairs & Anor [2019] FCCA 1400
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
MZZGC v Minister For Immigration and Border Protection [2015] FCA 842
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 6 February 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Applicant: Mr Sharma (HWL Ebsworth) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1148 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CBO20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
19 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is substituted to ‘Minister for Immigration and Multicultural Affairs’.
2.The application for an extension of time is granted.
3.The application for judicial review is dismissed.
4.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,600.00.
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 D HUMPHREYS
EXTENSION OF TIME
The applicant seeks leave for an extension of time in respect of an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 27 March 2020. The Tribunal confirmed an earlier decision on 11 March 2020 to dismiss an application for merits review. The applicant sought merits review of a decision made on 13 January 2017 by a delegate of the Minister for Immigration and Border Protection (“delegate”) to refuse to grant the applicant a Protection (class XA) (subclass 866) visa (“visa”).
The applicant seeks an extension of time under s 477(2)(b) of the Migration Act 1958 (Cth) (“the Act”) on the following grounds (errors in original):
1.I did not receive the hearing date and dismissal letter dated 11 March 2020.
2.I should be given a fair chance for my review application process.
3.I should be given another chance due to COVID-19 pandemic.
For the reasons outlined below, the application for an extension of time should be granted but the substantive application dismissed.
BACKGROUND
The applicant is a male citizen of China. He first arrived in Australia on 22 April 2016 as the holder of a Visitor visa (subclass 600) which expired on 9 May 2016.
On 3 May 2016, the applicant made a valid application for the visa.
On 15 December 2016, the applicant attended a protection visa interview.
On 13 January 2017 a delegate refused to grant the applicant the visa under s 65 of the Act.
The applicant applied to the Tribunal seeking review of the delegate’s decision on 14 February 2017.
On 20 February 2020, the applicant was invited to attend a hearing scheduled on 11 March 2020. Correspondence was sent to the applicant’s nominated email address contained in a Change of Contact Details form at CB79.
Two reminder SMS messages were also sent to the applicant’s nominated mobile phone number, confirming the hearing date however both were recorded as ‘Delivery Failed”: (CB 99).
The applicant did not attend the hearing.
On 11 March 2020, the Tribunal dismissed the application for review under s 426A(1A)(b) of the Act. A letter advising this was sent to the applicant’s nominated email address on the same day but advising him of his right to seek a reinstatement by 25 March 2020:(CB 90).
As no application to reinstate the application was received, on 27 March 2020 the Tribunal confirmed the decision to dismiss the application.
On 13 May 2020, the applicant lodged an application for judicial review with the then Federal Circuit Court of Australia. The application is 12 days out of time and requires an extension of time.
THE LAW IN RELATION TO AN EXTENSION OF TIME
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 the following matters were held to be relevant as to whether an extension of time should be granted:
a)the extent of the delay;
b)the explanation for the delay;
c)prejudice to the respondent due to the delay; and
d)the merits of the proposed application.
To the above, the Court would add that the longer the delay in lodging an application, the more persuasive the reason for the delay must be.
THE APPLICANT’S SUBMISSIONS ON AN EXTENSION OF TIME
The applicant claims he did not receive either the hearing date invitation or the initial dismissal letter. However, when questioned by the Court, he confirmed he had received the dismissal confirmation of the dismissal letter, but it went to his ‘junk’ email box, and he did not see it until much later. When he did see it, he sought to have his case reopened and then applied to the Court for judicial review.
THE FIRST RESPONDENT’S SUBMISSIONS
The applicant does not identify any jurisdictional error in the Tribunal's decision. It is submitted that an extension of time should be refused and the application dismissed.
The Court may grant an extension of time if an application for that order is made in writing, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order per s 477(2) of the Act.
There are no criteria prescribed by s 477 which requires the satisfaction of the “interests of the administration of justice”; (see: SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [47] (“SZRIQ”)). It is well established the factors which should be taken into account include:
(a)The length of the delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably: see MZZGC v Minister For Immigration and Border Protection [2015] FCA 842 at [15] per Mortimer J;
(b)Whether there is any prejudice to the Minister; and
(c)Whether the applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time. See SZRIQ (supra) at [47] and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–9 per Wilcox J.
The first respondent submitted that the substantive case for judicial review fails to justify any grant of an extension of time as the grounds of the application do not establish any jurisdictional error on the part of the Tribunal.
The applicant's grounds have no reasonable prospects of success because they are not arguable, reasonably arguable or sufficiently arguable: (see: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 at [76] and also see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62] per Mortimer J and Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [7]-[9]).
SHOULD AN EXTENSION OF TIME BE GRANTED?
In relation to the length of the delay, the court notes it is some 12 days in circumstances where the applicant does not speak English and is unrepresented. In these circumstances this mitigates in favour of an extension of time being granted.
The Minister has not identified, other than as to costs, any prejudice that will flow from an extension of time being granted. The Court considers this neutral in relation to whether or not an extension of time should be granted.
In relation to the final matter, being whether or not there are arguable grounds, any consideration needs to be done at an impressionistic level. As this will require a detailed consideration of the applicant’s evidence, the Court is of the view that there is sufficient justification for an extension of time to be granted so as to allow the application to be dealt to finality on its merits.
Accordingly, the Court grants an extension of time for the filing of the application for judicial review.
ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
By letter dated 11 March 2020, the applicant was notified of the Tribunal’s decision to dismiss the application and was provided with written reasons for the decision pursuant to s 426B(5) of the Act.
The applicant was advised that he may seek to reinstate the application within 14 days of receiving the dismissal statement. He was also informed that a failure to apply for reinstatement within the 14-day period, specified as ending on 25 March 2020, would result in the confirmation of the dismissal decision.
The Tribunal stated at [4] that the applicant had not applied for reinstatement of the application within the requisite 14-day time period. The Tribunal therefore confirmed its decision to dismiss the application.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in an Originating Application filed on 14 May 2020. They are reproduced as follows (errors in original):
1.I did not receive the hearing date and dismissal letter dated 11 March 2020.
2.I should be given a fair chance for my review application process.
3.I should be given another chance due to COVID-19 pandemic.
4.Because of this pandemic, I should be given deferral or another date after the end of the pandemic.
5.It is unfair to me to refuse my application without proper consideration of the details of my application.
APPLICANT’S SUBMISSIONS ON MERIT
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing the Court ensured that the applicant had been provided with a copy of the Court Book and that a copy of the Minister’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the hearing if he wished.
The Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The court also explained how the hearing would be conducted.
Notwithstanding Court orders, no written submissions or other material was provided by the applicant in support of his case. The applicant confirmed to the Court that the contact details set out at page 79 of the Court Book were in fact correct as at the time of the Tribunal hearing. He stated that he had been working on the construction of the new Grafton correctional facility and that at the time, there was no mobile phone coverage for that area.
Whilst the applicant claimed he did not receive the hearing invitation, he confirmed that he did receive the confirmation of dismissal letter, although he found it much later in his “junk” email box. The Court discussed with the applicant the issue that, provided the Tribunal had properly transmitted to him at his nominated email address, which he confirmed was correct, the hearing invitation, together with the initial dismissal decision, then the fact that this might have not been received as it went to his “junk” email address was not a matter the Court could take into account. All that was required was of the material to be transmitted to the applicant’s current email address. In a similar vein, the fact that he was out of mobile phone coverage was not a matter the Court could take into account for his non-attendance.
THE RESPONDENT’S SUBMISSIONS ON MERIT
As to grounds one, two and five, the applicant’s claims fail at a factual level and no error arises on part of the Tribunal.
After the applicant failed to attend the scheduled hearing, the Tribunal relied on s 426A(1A)(b) of the Act and proceeded to dismiss the application without any further consideration of the application or information before it. The Tribunal complied with the requirements of ss 425 and 425A of the Act in inviting the applicant to attend a hearing. In particular, by way of the s 359 letter dated 20 February 2020.
There is no evidence to suggest the Tribunal’s emails to the applicant were returned undelivered. It was open to the Tribunal to dismiss proceedings pursuant to s 426A(1A)(b) of the Act. As the applicant did not apply for reinstatement within 14 days or at all, the Tribunal was required to confirm the decision to dismiss the application; (see for example: s 426A(1E) of the Act; Kumar v Minister for Home Affairs & Anor [2019] FCCA 1400 at [37]; AYT16 v Minister For Immigration and Border Protection [2017] FCA 252 at [10] per Perram J).
The first respondent submitted it was clear the applicant had shown little engagement with the review process beyond filing his application with the Tribunal. The applicant’s failure to apply for reinstatement and his non-appearance clearly demonstrated he was not actively seeking to engage with the Tribunal. Accordingly, the Tribunal exercised its discretion under s 426A(1A)(b) of the Act reasonably.
Grounds three and four fail to establish any error on the part of the Tribunal.
CONSIDERATION
Ground one is a claim that the applicant did not receive the hearing date and dismissal letter. The Court is satisfied that the Tribunal properly transmitted the hearing invitation letter and the dismissal letter to the applicant’s nominated email address. The Court accepts that it may well be the case the letters went to the applicant’s “junk” email address, however this is not a fact which invalidates the hearing invitation and dismissal letter being transmitted. The Court is satisfied that all relevant statutory requirements were met as regards the transmission of the hearing invitation letter and the initial dismissal decision. The Tribunal was entitled to act in the manner that it did initially dismissing the application and then later confirming that dismissal. Ground one has no merit.
Grounds two, three and four, which, inter alia, claim the applicant should be given a fair chance in his review process and that the Court should take account of the fact the review occurred during the Covid 19 pandemic raise no ground of jurisdictional error. They have no merit.
Ground five merely expresses vehement disagreement with the Tribunal decision to dismiss the application for non-appearance. It does not assert any jurisdictional error and has no merit.
As the applicant is unrepresented, the Court has perused the Court Book and Tribunal decision record but cannot discern any unarticulated jurisdictional error.
DETERMINATION
In these circumstances the application must be dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 19 February 2025
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