CHE20 v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 505
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CHE20 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 505
File number(s): SYG 1208 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 10 April 2025 Catchwords: MIGRATION – application for review of decision of registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – whether judicial review application has reasonable prospects of success – application for review of registrar’s decision lodged 15 days late – extension of time refused – costs ordered Legislation: Migration Act 1958 (Cth) ss 494C(5), 476
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02, 21.04
Migration Regulations 1994 (Cth) reg 4.31(2)
Cases cited: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; 267 FCR 15
Bin Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
CHE20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 463
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Przyblowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 7 April 2025 Place: Parramatta Applicants: First Applicant in person Solicitor for the Respondents: Mr L Dennis (Mills Oakley) ORDERS
SYG 1400 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHE20
First Applicant
CHG20
Second ApplicantCHH20
Third ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
10 APRIL 2025
THE COURT ORDERS THAT:
1.Leave to file the application for review lodged on 21 March 2025 is refused.
2.The first and second applicants pay the first respondent’s costs in the sum of $1,000.
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 ZIPSER
INTRODUCTION
On 21 March 2025, the applicants lodged, pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), an application for review (Review Application) of a decision of a registrar of this Court dated 27 February 2025: CHE20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 463 (Registrar Decision). The registrar summarily dismissed the applicants’ application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 17 April 2020. Since the Review Application was lodged outside the 7 days referred to in r 21.02(1) of the Rules, the applicants require an extension of time under r 21.02(2) to make the Review Application.
For the reasons that follow, it is not appropriate to extend time for the making of the Review Application. For this reason, leave to file the Review Application is refused.
BACKGROUND
On 9 March 2018, the applicants, citizens of India, lodged an application for protection visas. The first applicant was the main applicant (Applicant). The second applicant is the wife of the Applicant. The third applicant is a child of the Applicant and second applicant.
On 15 October 2019, a delegate of the first respondent refused to grant the applicants protection visas (Delegate’s Decision).
On 15 October 2019, the first respondent emailed a copy of the Delegate’s Decision to the applicants at an email address recorded in the protection visa application as the applicants’ email address for correspondence. The email included a covering letter which informed the applicants that any application for merits review to the Tribunal must be “given to the AAT within the period of 28 calendar days commencing on the day you are taken to have received this letter”, and added that, as the letter was sent to the applicants by email, “you are taken to have received it at the end of the day it was transmitted”.
On 25 November 2019, the applicants applied to the Tribunal for review of the Delegate’s Decision.
On 20 December 2019, the Tribunal emailed a letter to the applicants inviting them to comment by 7 January 2020 on the Tribunal’s preliminary view that the application to the Tribunal was lodged out of time and was not a valid application.
On 3 January 2020, the Applicant sent an email to the Tribunal attaching a letter dated 21 December 2019. In the letter, the Applicant acknowledged that he received the Delegate’s Decision on 15 October 2019. The Applicant explained that he did not understand the information in the letter as he was not educated in English and did not show anyone the letter because he was stressed. He stated that his wife was five months pregnant and was ill and he was looking after his five-year-old daughter on his own. He stated that he was depressed as he was unemployed and in financial hardship.
On 17 April 2020, the Tribunal made a decision that it did not have jurisdiction in the matter.
TRIBUNAL’S DECISION
The Tribunal at [2] stated that, pursuant to reg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations), an application for review to the Tribunal must be made within 28 days of the day the applicants were notified of the Delegate’s Decision.
The Tribunal at [5] found that the applicants were taken to have been notified of the decision on 15 October 2019, and therefore the prescribed period to apply for review ended on 11 November 2019.
The Tribunal at [4] considered the Applicant’s explanation in his letter dated 21 December 2019.
Regardless of the Applicant’s explanation, since the application for review was not received by the Tribunal until 25 November 2019, the Tribunal at [6] found that it had no jurisdiction in the matter.
PROCEEDINGS IN THIS COURT
Judicial review application
On 20 May 2020, the applicants filed an application in this Court under s 476 of the Migration Act 1958 (Cth) (Act) seeking judicial review of the Tribunal’s decision (Originating Application). The grounds in the application were (as written):
1.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act. The Tribunal failed to provide the Applicant with an opportunity to appear before it, and thus failed to comply with the mandatory requirements of section 425(1).
2.The Tribunal did not consider the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India because the person committed suicide and wrote applicant’s name in the suicide note.
3.The Tribunal has failed to investigate applicant’s claim, specially the grounds of persecution in India.
On 9 July 2020, the Court made procedural orders permitting the applicants to file and serve any amended application and a written submission by 1 October 2020. The applicants did not take up this opportunity.
Summary dismissal application and hearing on 27 February 2025
On 29 January 2025, the first respondent filed an amended response which sought an order that the Originating Application be dismissed pursuant to r 13.13 of the Rules on the basis that the application had no reasonable prospects of success.
On 29 January 2025, the Court listed the summary dismissal application for hearing on 27 February 2025, and made procedural orders including that the applicants file any amended application, a written submission and any further evidence by 25 February 2025. The applicants did not file any further materials before the summary dismissal hearing on 27 February 2025.
On 27 February 2025, there was a hearing of the first respondent’s summary dismissal application before a registrar. The Applicant appeared at the hearing by telephone, assisted by a Gujarati interpreter.
Following the hearing, and on the same day, the registrar made the Registrar Decision in which he summarily dismissed the Originating Application pursuant to r 13.13(a) of the Rules. The registrar gave oral reasons for his decision. The registrar subsequently prepared written reasons, being the Registrar Decision, which were emailed to the parties on 31 March 2025.
Review Application and hearing on 7 April 2025
On 21 March 2025, the applicants lodged the Review Application, which requested review of the following orders for the following reasons:
I am seeking to review the following orders:
1. The Hon. Registrar dismissed the application without considering the legal and factual error contained in the decision.
2. The Hon, Registrar should have found that the Tribunal failed to properly deal with that I met the criteria for a Protection visa set out in s. 36 of the Act and Schedule 2 to the Migration Regulation 1994(cth).
On 31 March 2025, the Court made procedural orders, including:
1.The application for review lodged by the applicants on 21 March 2025, including any application for an extension of time under rule 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, is listed for hearing at 10:15 am on Monday 7 April 2025 before Judge Zipser.
2.The applicants may file and serve any submission and evidence in support of the application for review, and application for an extension of time, by 12 pm on Thursday 3 April 2025.
The applicants did not take up this further opportunity to file any submission or further evidence before the hearing on 7 April 2025.
On 7 April 2025, there was a hearing of the Review Application. The Applicant appeared in person, assisted by a Gujarati interpreter. Liam Dennis of Mills Oakley appeared for the first respondent.
The Applicant did not bring to the hearing any documents in the matter. I caused to be provided to the Applicant a copy of the Tribunal’s decision and the Registrar Decision.
I directed the Applicant’s attention to the Tribunal’s decision. I explained to the Applicant that, to win in the Court, he must persuade the Court there is a jurisdictional error, which I described as a significant mistake or error, in the Tribunal’s decision. I explained the main categories of jurisdictional error.
I directed the Applicant’s attention to the Registrar Decision. I explained to the Applicant that the Registrar Decision provided the registrar’s reasons for summarily dismissing the Originating Application and, if the Applicant considered that the Registrar Decision was wrong, he should explain why the Registrar Decision was wrong.
I explained to the Applicant that the applicants lodged the Review Application about 15 days out of time, the applicants required an extension of time to lodge the Review Application, the applicants needed to provide evidence to explain why they lodged the Review Application 15 days late, but the applicants had not filed any evidence. I invited the Applicant to give oral evidence to explain why the Review Application was lodged 15 days late.
I then adjourned the matter for 15 minutes to allow time for the interpreter to read to the Applicant the Tribunal’s decision and the Registrar Decision, for the Applicant to consider submissions he wanted to make to the Court, and for the Applicant to consider whether he wanted to give evidence to explain why the Review Application was lodged 15 days late.
Following a break of 15 minutes, the hearing resumed. The Applicant stated that he did not wish to give any oral evidence to explain why the Review Application was lodged 15 days late. Mr Dennis tendered a Court Book (CB) which contained the Tribunal’s decision and documents before the Tribunal. Mr Dennis read an affidavit of Sharon Sangha affirmed on 12 November 2020 which contained evidence to prove that on 15 October 2019 the Department emailed a copy of the Delegate’s Decision to the applicants at the applicants’ nominated email address. The Applicant then made oral submissions. The Applicant asked the Court to send the matter back to the Tribunal because the Applicant still feared for his life if required to return to India. The Applicant did not refer to the Tribunal’s decision dated 17 April 2020, let alone contend there was an error in the decision.
RULES AND PRINCIPLES CONCERNING SUMMARY DISMISSAL APPLICATIONS AND REVIEW OF REGISTRAR DECISIONS
Rule 13.13 of the Rules states:
13.13 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Aided by s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act), Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 (Spencer) and Przyblowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przyblowski) at [6]-[7], some principles concerning the test for summary dismissal are:
(a)The respondent as the moving party bears the onus of persuading the court that the application has no reasonable prospects of success.
(b)An application “need not be hopeless or bound to fail for it to have no reasonable prospect of success”: s 143 of Act.
(c)The provision “will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable”: Spencer at [22].
(d)The “exercise of powers to summarily terminate proceedings must always be attended with caution”: Spencer at [24].
(e)An “assessment of whether a proceeding has no reasonable prospects of success … involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court”: Przyblowski at [7(4)].
(f)The “determination of a summary dismissal application … requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial”: Przyblowski at [7(5)].
In considering whether any deficiency in the applicants’ pleadings in the present matter was “incurable” (Spencer at [22]), it is relevant that the applicants had a number of opportunities to file an amended application and written submission, but did not do so.
To successfully prosecute their application for judicial review, the applicants must establish that the Tribunal’s decision is affected by jurisdictional error.
Where a registrar of the Court exercises a power, Part 21 of the Rules permits a dissatisfied party to apply for review by a judge of the exercise of power. Rule 21.04 states that the review “must proceed by way of a hearing de novo”.
Rule 21.02 of the Rules states:
21.02 Time for application for review
(1) For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) may be extended in a proceeding:
(a)by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b) with the consent of the parties to the proceeding.
As stated above, the applicants require time to be extended to file the Review Application. Cases such as Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12] indicate that principal factors in considering whether to extend time are:
(1)length of applicant’s delay;
(2)applicant’s explanation for delay;
(3)prejudice to opposing party if time is extended; and
(4)merits of underlying application.
CONSIDERATION
Pursuant to rule 21.02(1) of the Rules, an application for review of the Registrar Decision “must be made within 7 days”. Pursuant to rule 21.02(2), the Court may extend the time prescribed by rule 21.02(1). The following paragraphs address the factors in paragraph 36 above.
Length of and explanation for applicants’ delay
The Registrar Decision was made on 27 February 2025. The applicants had a right under rule 21.02(1) to lodge an application for review of the Registrar Decision up to 6 March 2025. The applicants lodged the Review Application on 21 March 2025. The length of the applicants’ delay was 15 days. The applicants have not provided an explanation for the delay, despite the Applicant having had opportunities to provide an explanation and the need for an explanation being communicated to the Applicant at the hearing in this Court on 7 April 2025. Although the delay is not long, the failure of the applicants to provide an explanation weighs against the Court extending time.
Prejudice to first respondent if time is extended
The first respondent has stated in a written submission that it suffers no particular prejudice, other than costs, if an extension of time is granted.
Merits of underlying application
Introduction
The “Tribunal’s finding that the application was out of time was a decision as to the existence of a condition precedent to its jurisdiction” and so it is “therefore open to re-examination”: Bin Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Bin Xie) at [19]. I am satisfied that on 15 October 2019 the Department emailed to the applicants’ nominated email address (see email address in protection visa application at CB 14) a copy of the Delegate’s Decision, together with a covering letter explaining the applicants’ review rights: see letter at CB 124-127 and affidavit of Ms Sangha. Pursuant to s 494C(5) of the Act, where the Department emails a document to an applicant, “the person is taken to have received the document at the end of the day on which the document is transmitted”. Further, the Applicant acknowledged in a letter to the Tribunal dated 21 December 2019 that he received the Delegate’s Decision on 15 October 2019: see CB 149. The “Tribunal’s jurisdiction is statutory and must be invoked in the prescribed manner”: Bin Xie at [3]. Pursuant to s 412(1)(b) of the Act, an application for review “must … be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision”. Pursuant to reg 4.31(2) of the Regulations, the prescribed period is “28 days commencing on the day the applicant is notified of the decision”. It follows that the last day the applicants could apply to the Tribunal for review was 11 November 2019. Since the applicants did not lodge their Tribunal application until 25 November 2019 (CB 133), the 28 day period was over and the Tribunal had no jurisdiction to review the Delegate’s Decision. The Tribunal does not have power to extend the 28 day period: see Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; 267 FCR 15.
Ground 1 of Originating Application
It is stated that “the Tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act”. The meaning of this contention is unclear. Further, the contention is devoid of particulars. The “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37].
It is stated that “the Tribunal failed to provide the applicants with an opportunity to appear before it and thus failed to comply with the mandatory requirements of section 425(1)”. However, the Tribunal had no obligation, let alone power, to provide the applicants with a hearing because the Tribunal had no jurisdiction to review the delegate’s decision.
Ground 1 does not have reasonable prospects of success.
Ground 2 of Originating Application
It is stated that “the Tribunal did not consider the risk and fear of significant harm as set out in s 36(2A) of the” Act. However, the Tribunal had no jurisdiction to review the Delegate’s Decision or investigate the applicants’ claims.
It is also stated that the Tribunal erroneously construed “the existence of risk of life and fear of significant harm to the applicant”. This contention does not relate to any finding by the Tribunal.
Ground 2 does not have reasonable prospects of success.
Ground 3 of Originating Application
It is stated that the Tribunal “has failed to investigate the applicant’s claims …”. However, the Tribunal had no jurisdiction or power to investigate the applicants’ claims.
Ground 3 does not have reasonable prospects of success.
Since no ground in the Originating Application has reasonable prospects of success, the Review Application has no merit.
Conclusion concerning extension of time
Upon weighing the above factors, I consider it is not appropriate to extend time for the applicants to file the Review Application. This is due to the failure of the applicants to provide an explanation for the delay and the underlying application having no merit. As stated by Mortimer in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4], albeit in the context of a different discretionary procedural power, “it is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case …”.
COSTS
Mr Dennis sought costs in the amount of $1,000. He stated this was less than the first respondent’s solicitor/client costs. The Applicant did not oppose this amount. I consider this amount is reasonable. Since the third applicant is a child, the order will be only against the first and second applicants. I will make an order for this amount.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 10 April 2025
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