CIK23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 546
•17 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CIK23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 546
File number(s): SYG 1532 of 2023 Judgment of: JUDGE GIVEN Date of judgment: 17 June 2024 Catchwords: MIGRATION - Review of Registrar decision made out of
time – where applicant failed to seek extension of time, elect for oral hearing or make written submissions – review application dismissed as incompetentLegislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254, 256
Migration Act 1958 (Cth) ss 36, 66, 412, 422B, 494C
Migration Regulations 1994 (Cth) reg 4.31
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02
Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
DZU21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 249
Lamb v Sherman (2023) 298 FCR 79
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 20 March 2024 Date of hearing: Determined in Chambers Place: Sydney The Applicant: No appearance The Respondents: Sparke Helmore Lawyers ORDERS
SYG 1532 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIK23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
17 JUNE 2024
THE COURT ORDERS THAT:
1.The application made pursuant to r 21.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), seeking review of the decision of Registrar Cummings made on 12 February 2024 (review application), is dismissed.
2.In addition to order 2 made on 12 February 2024, the applicant must pay the first respondent’s costs and disbursements, of and incidental to the review application, fixed in the sum of $1,200.00.
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 GIVEN:
Before the Court is an application in a proceeding made on 27 February 2024[1] by which the applicant seeks review of a decision made by a Registrar of this Court (Registrar) on
12 February 2024 (review application). By that decision, the Registrar dismissed the applicant’s application for judicial review made on 28 September 2023 (application) pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).[1] Filed on 24 February 2024 and accepted for filing on 27 February 2024: see Lamb v Sherman (2023) 298 FCR 79 at [54] per Rares, Rofe and Downes JJ
BACKGROUND
The background to this matter is derived from the submissions of the first respondent filed on each of:
(a)19 December 2023, in support of the first respondent’s summary dismissal application; and
(b)20 March 2024, relating to this review application.
The applicant is a citizen of India who arrived in Australia on 13 October 2018. On 13 February 2023, he applied for a Protection (Class XA) (Subclass 866) visa (visa) (Court Book (CB) 1 to 18).
On 25 May 2023, a delegate of the first respondent (delegate) refused to grant the visa, on the basis that they were not satisfied the applicant’s claims were credible and, accordingly, found that the applicant did not meet s 36(2) of the Migration Act 1958 (Cth) (Act) (CB 37 to 43). On the same day, the delegate notified the applicant by email to the email address provided by him in the visa application (CB 5 and 33 to 36).
On 23 June 2023, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision (CB 44 to 51).
On 14 July 2023, the Tribunal wrote to the applicant by email, to the email address given by him in connection with the review, to invite comment on the validity of his application.
The Tribunal noted that the last day for the applicant to apply for review was 21 June 2023 and, because the application was not lodged until 23 June 2023, it had not been lodged within the requisite time (CB 44 and 55 to 57).
On 14 July 2023, the applicant responded to the invitation to comment in the following terms (CB 58) (errors in original, anonymisation added):
Hi sir
As you received my application late,
I have suffering from many money circus, i have lost my old phone so i lost everything in that mobile, when i got new mobile phone and installed and check it, but it was too late, I realise and submitted as soon as possible, so I am requesting please accept my application as soon as possible,
Thanks
Regards
[CIK23]
By its decision made on 15 September 2023, the Tribunal found that the applicant had been notified of the delegate’s decision by letter dated 23 May 2023 in accordance with the statutory requirements, and was therefore taken to have been notified on that day in accordance with s 494C of the Act (CB 62 at [3] to [5]).
The Tribunal concluded that the prescribed period to apply for review ended on 21 June 2023 (CB 62 at [5]) and, because the application had not been received until 23 June 2023, it was not made within the prescribed period. The Tribunal concluded therefore that it did not have jurisdiction to review the decision (CB 62 at [6] to [7]).
On 21 October 2023, the first respondent sought expedition of the proceedings for hearing of a summary dismissal application, made pursuant to r 13.13(a) of the Rules. That application was heard by the Registrar on 6 February 2024.
On 12 February 2024, the Registrar made his decision that the application be dismissed, together with the following orders:
1.The application for judicial review be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The applicant pay the first respondent’s costs fixed in the amount of $4,189.38.
REVIEW APPLICATION
By the review application, the applicant seeks review of the Registrar’s decision pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act).
At the time the Registrar made the order dismissing the application, he had power to do so pursuant to s 254(1) of the Court Act, read together with the following parts of the Rules:
(a)rule 21.01;
21.01 Delegation of powers to Registrars
(1) For the purposes of subsection 254(1) of the Act, a power of the Court mentioned in an item of the following table is delegated to a Registrar (an approved Registrar) who is approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of the power.
Note 1: Subsection 254(1) of the Act enables the Chief Judge to make Rules of Court delegating powers to a delegate or prescribed class of delegate. A Registrar is a delegate (see paragraph (b) of the definition of delegate in subsection 7(1) of the Act).
Note 2: In these Rules, Registrar means a Senior Registrar or Registrar of the Court (see the definition of Registrar in rule 1.05).
(b)table 21.1, Item 58
To order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding…
The combined effect of the above legislation is that a Registrar of this Court has delegated power to dismiss any claim for relief in the proceedings.
Section 256(1) of the Court Act has the effect that a party to proceedings in which the Registrar has exercised delegated powers under s 254, may apply to the Court for review of that exercise of power, within a time prescribed by the Rules as follows:
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.
21.04 Procedure for review
(1) The review of an exercise of power by a Registrar must proceed by way of a hearing de novo.
(2) In the review, the Court:
(a) may receive as evidence any affidavit or exhibit tendered before the Registrar; and
(b) may with leave receive further evidence; and
(c) may receive as evidence:
(i) any transcript of the proceeding before the Registrar; or
(ii) if there is no transcript—an affidavit sworn by a person who was present at the proceeding before the Registrar as a record of the proceeding.
Pursuant to r 21.02 of the Rules, any application for review of the Registrar’s decision was required to have been made within 7 days of that decision, in this case on or by 19 February 2024. Accordingly, by reference to the date on which the application can be taken to have been made (see [1] above), the review application was made 8 days out of time.
On 28 February 2024, the matter was docketed to me, on which date I made the following orders in Chambers:
1. By 4:00pm on 6 March 2024 any party who elects for the application for review of a Registrar’s decision filed on 24 February 2024 (review application) to proceed to an oral hearing must notify the Court of that preference by email to the chambers of Judge Given at: [email protected], following which the matter will be listed for a hearing at a date to be advised.
2. In the event that no election is made pursuant to order 1, the parties are taken to have consented to the review application being heard and determined in chambers in its current form pursuant to, and for the purposes of, s 136(4)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3. The applicant must file and serve an outline of written submissions in relation to the review application, including any application for an extension of time pursuant to 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (EOT), by 4:00pm on 13 March 2024.
4. The first respondent must file and serve an outline of written submissions in relation to the review application and any EOT, by 4:00pm on 20 March 2024.
5. In the event that the applicant fails to comply with order 3 above:
a. order 4 above is vacated, and in lieu thereof the first respondent may file any written submission, including if only limited to the issue of costs; and
b. judgment is reserved to a time, and method, to be notified to the parties.
6. Otherwise, judgment is reserved from the date upon which the first respondent files written submissions pursuant to order 4 above to a time, and method, to be notified to the parties.
(February Orders)
No election for oral hearing in accordance with order 1 of the February Orders was forthcoming from either party. Therefore, the matter proceeded as one by which the parties had consented to determination on the papers pursuant to s 134(4)(b) of the Court Act. As will also be observed, by the February Orders the applicant was required to file any written submissions thereafter by 4:00pm on 13 March 2024. No such document was filed in time, or at all. The first respondent thereafter filed written submissions as ordered, following which judgment was reserved.
In DZU21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 249 at [22] to [25] this Court observed the following in circumstances where the review application was out of time and the applicant had neither elected for an oral hearing, nor availed themself of the opportunity to make written submissions:
[22] In the present case, the applicant was given the opportunity to elect for an oral hearing, and did not do so. Had the applicant so elected, and appeared before the Court, then an application for extension of time could have been made and (more importantly) addressed. He also has chosen, for whatever reason, not to avail himself of the grant of leave to make written submissions by which he might also have made the application for an extension of time but, more crucially, substantively addressed that issue. As it stands, even if the Court were to take the application as implicitly seeking an extension there is no material before me to inform a number of factors which would require assessment in exercising the Court’s broad discretion to extend.
[23] In particular there is no material from the applicant to address:
(a) the period of delay;
(b) the explanation for it, noting that while the time period in r 21.02 is brief,1 a proper explanation is still required in the event that it is not met; and
(c) any prejudice to the parties.
[24] As the Court also observed AHH22 (supra), each case must be considered on its own facts and circumstances and in the full context in which the review arises. In my view, the applicant has been afforded the opportunity to proceed to oral hearing but instead elected (by omission) to have the review application determined on the papers, without having sought or addressed the extension of time and therefore the review application should be dismissed as incompetent.
[25] I would add that even absent being able to address the factors set out at [23] above, in circumstances where the Tribunal was correct in its assessment as to jurisdiction, I would not (even on an impressionistic level) be satisfied that the grounds of review raised in the originating application have a reasonable prospect of success. To the extent that the first respondent says that the applicant additionally asserted before the Registrar that his lawyer failed to notify him of the delegate’s decision, there is no material before the Court to particularise this allegation (much less any evidence) to raise it to the level where it could be seen as having a reasonable prospect of success.
In the present case, the Court is similarly unassisted in its de novo hearing of the application for summary dismissal. That is because, firstly, there is no evidence or submissions going to whether time for the review application should be extended. The applicant advances no explanation or submissions as to the length of delay in bringing the review application, nor as to the explanation for the delay.
More substantively, the applicant has also not advanced any argument as to why he says the proceedings ought not be summarily dismissed, which would also intersect with consideration of the substantive merits of the case sought to be advanced in the application for judicial review (albeit for the purpose of whether to extend time, taken at an impressionistic level): see AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 at [15]; see Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [12] per Kiefel CJ, Gageler (as his Honour the Chief Justice then was), Keane and Gleeson JJ.
The first respondent says that the judicial review application has no reasonable prospects of success and that “the applicant has not advanced any new ground or argument as to why the Registrar’s decision was wrong.” However, the Court is not assessing the Registrar’s decision for error. Rather, and as this Court observed in AHH22 at [24]:
While sometimes described as being a “check” on the s 254 power, the task which falls to this Court in reviewing the decision of the Registrar is not a review in the sense that the Court is required to consider the existence of error and, absent such error, must otherwise confirm the decision. A review application is not an appeal. Relevant principles from Becharav Bates (supra), as well as from the decision of Robson as former trustee of Estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494 , were helpfully distilled by the Full Court in Allison v Murphy[2021] FCAFC 232 at [11] per Besanko, Colvin and Downes JJ.
In a competent review application, the Court would consider for itself the potential merits of the judicial review application. In this case, the Minister contends that those merits are informed by the fact that the applicant was validly notified of the decision of the delegate in accordance with s 66 of the Act, and was taken to have been notified of the delegate’s decision on 25 May 2023 (CB 43). Pursuant to reg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations) and s 412(1)(b) of the Act, the applicant was thus required to lodge any application for review with the second Tribunal by 21 June 2023. The Court would have regard to the fact that an application for review was not made to the Tribunal until 23 June 2023 and was, therefore, made outside of the time prescribed. The Court would have regard to the fact that, accordingly, the Tribunal appears to have correctly found that it did not have jurisdiction to review the delegate’s decision, and that it was required to reject the application for review as being invalid.
In all the circumstances of this case, while the period of delay is short, I am not satisfied that there is a sufficient basis advanced by the applicant upon which the Court would extend the time to make the review application.
Further, for the reasons given at [24] I am satisfied that there is no sufficiently arguable error on the part of the Tribunal in determining that it did not have jurisdiction, such that there would be merit extending time.
Even if time were to be extended, to the extent that by his originating application the applicant alleges the Tribunal denied him procedural fairness, in circumstances where it correctly found that it had not jurisdiction the procedural fairness obligations which would otherwise have arisen pursuant to Division 4 of Part 7 of the Act (which by reference to s 422B of the Act are taken to be an exhaustive statement of its natural justice requirement) did not arise. There is also nothing to suggest that the Tribunal did anything otherwise than to comply with any extant common law procedural fairness obligations by, primarily, inviting him to comment in writing on its preliminary view that the review application appeared to be out of time. Accordingly, such a ground would also not appear to have a reasonable prospect of success.
As such, the proceeding would not appear to have a sufficient prospect of success and I agree it ought to have been summarily dismissed. If the review application had been competent, I would have reached the same conclusion as did the Registrar.
CONCLUSION
In my view, the applicant has been afforded the opportunity to proceed to hearing of his review application. Having instead elected (by default) to have this review application determined on the papers, and having not availed himself of leave to otherwise address the necessary extension of time and the review application, I am satisfied that the review application should be dismissed as incompetent. I will so order.
COSTS
The first respondent additionally seeks an order that the applicant pay his costs of the review application fixed in the sum of $1,200. This seems in the circumstances of the review application to be a reasonable amount, and I will make an order to this effect also.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 June 2024
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