CIN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 268
•16 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CIN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 268
File number(s): SYG 2439 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 16 February 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – refusal of an extension of time for show cause application. Legislation: Migration Regulations 1994 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Cases cited: BMY18 v Minister for Home Affairs (2019) 271 FCR 517
DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492
EXU17 v Minister for Immigration and Border Protection [2018] FCA 1675
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491
Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294
Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344
Number of paragraphs: 34 Date of hearing: 16 February 2021 Place: Sydney The Applicant appeared in person Solicitor for the Respondent: Ms M Kelly of Sparke Helmore INTERLOCUTORY ORDERS
SYG 2439 of 2020 BETWEEN: CIN19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
16 FEBRUARY 2021
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time be refused.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
I have before me an application for judicial review filed on 26 August 2020. The Administrative Appeals Tribunal (Tribunal) affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The application was not filed within the time prescribed under s 477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time under s 477(2) of the Migration Act. The Minister opposes the granting of an extension of time. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 8 February 2021, which I adopt.
The applicant, a citizen of Fiji, arrived in Australia on 11 May 2005 as the holder of a tourist (Class TR) (Subclass 676) visa.[1] That visa expired on 16 May 2005 and the applicant has remained in Australia as an unlawful non-citizen since that time.
[1] Court Book (CB) 44.
On 3 March 2019, the applicant applied for a protection (Subclass XA-866) visa on the basis that he feared harm from the Fijian military after leaving Fiji without being discharged from his cadet training.[2]
[2] CB 1-21, 33-36.
On 11 April 2019, the delegate refused to grant the applicant the visa.[3]
[3] CB 44-50.
On 15 June 2019, the applicant applied to the Tribunal for review of the delegate’s decision.[4] On 9 October 2019, the Tribunal invited the applicant to comment on the validity of his application, given it appeared to have been lodged out of time.[5] On 16 October 2019, the applicant responded to the Tribunal’s invitation, providing supporting material.[6] Among other things, he provided a statement dated 14 October 2019 in which he claimed that his migration agent had been paid to prepare and lodge the application to the Tribunal but had failed to do so.[7]
[4] CB 55-60.
[5] CB 78-79.
[6] CB 81-124.
[7] CB 99.
On 3 January 2020, the applicant wrote to the Tribunal from the email address in his application for review, requesting an update as to the status of his application.[8] On 9 January 2020, the Tribunal notified the applicant that in light of the decisions in DFQ17 v Minister for Immigration and Border Protection[9] and BMY18 v Minister for Home Affairs,[10] it now appeared that the Tribunal had jurisdiction to accept his application, which was awaiting allocation to a member.[11] As with all previous correspondence from the Tribunal, that notice was sent by email both to Villawood Immigration Detention Centre (VIDC) and the email provided by the applicant.[12] On 15 January 2020, the Tribunal wrote to the applicant noting that it had been advised the applicant was released from VIDC and requested that he provide current contact details.[13] No response was received. On 23 June 2020, the Tribunal contacted the applicant by telephone[14] and the applicant said he would provide updated contact details. Despite this, nothing further was received from the applicant.
[8] CB 125.
[9] (2019) 270 FCR 492
[10] (2019) 271 FCR 517
[11] CB 129.
[12] CB 127.
[13] CB 130.
[14] CB 160.
On 25 June 2020, the Tribunal invited the applicant to attend a hearing by telephone on 8 July 2020 (first hearing invitation).[15] It requested that the applicant provide all documents on which he intended to rely to establish that he met the criteria for the visa at least seven days before the hearing. It also advised that it may make a decision on the review without taking any further action to enable him to appear if he failed to do so. No response was received and, despite the Tribunal attempting to contact the applicant three times by telephone on the morning of the hearing, he did not appear.[16] On 12 August 2020, the applicant was invited to attend a hearing in person on 26 August 2020 (second hearing invitation).[17] The applicant did not attend that hearing either.[18]
[15] CB 136-138.
[16] CB 139-141, 160.
[17] CB 143-145.
[18] CB 146-149.
On 26 August 2020, the Tribunal affirmed the delegate’s decision.[19] The Tribunal’s decision and reasons were emailed to the applicant on 4 September 2020.[20]
[19] CB 152-155.
[20] CB 150.
Tribunal decision
The Tribunal recorded twice inviting the applicant to attend a hearing and notifying him that a decision may be made without further notice if he did not attend. It recorded that the invitations were sent to the applicant’s most recent email address but that he failed to appear at both hearings without reason.[21] In the circumstances, the Tribunal decided to make a decision on the review without taking any further action to enable the applicant to appear before it, under s 426A of the Migration Act.[22]
[21] CB 153, [4]-[9].
[22] CB 153, [10].
The Tribunal found that the applicant’s claims in relation to his alleged employment by the Fiji military forces were lacking in essential detail.[23] The Tribunal noted that, as a result of the applicant’s failure to appear before it, it had been unable to question him further as to the veracity of his claims. On the evidence before it, the Tribunal was not satisfied that the applicant suffered persecution in the past or that he had a well-founded fear of persecution if he returned to Fiji in the foreseeable future.[24]
[23] CB 155, [20].
[24] CB 155, [21]-[22].
The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Migration Act.[25] Relying on that anterior finding, the Tribunal was also not satisfied that the applicant was owed protection obligations under s 36(2)(aa) of the Migration Act.[26] Accordingly, the Tribunal affirmed the delegate’s decision.[27]
[25] CB 155, [23].
[26] CB 155, [24].
[27] CB 155, [26].
THE PRESENT PROCEEDINGS
These proceedings began with a show cause application filed on 28 October 2020. The application seeks an extension of time and provides four grounds in support:
1.Since applicant was in goal at the time of hearing date at Administrative Appeals Tribunal and released on 25/10/2020.
2.Since at present Applicant is in immigration detention centre with no knowledge of any immigration and currently welfare assistance for detainees are working from home due to recent virus and with no help and was advised by immigration case manager that I need to apply for review of Tribunal's decision to Federal Circuit Court
3.Applicant had no help with any legal aid for his application also applicant connect justice connect still was denied help.
4.Applicant got help from JAIL welfare assistance on 15/10/2020 it was already late and jail assistance don’t help for Federal Courts
(errors in original)
The application also seeks final relief. There are two grounds advanced for that:
1.The Tribunal erred in failing to find that the Respondent made jurisdictional error by denying the Applicant procedural fairness.
2.Considerations The error of law, where decision maker wrongly applied the law
Particulars
(a) A finding that [the applicant] had a disregard for judicial orders. This should have been put to him with enough particularity to allow [the applicant] to comment on it. The purpose of the obligation to afford procedural fairness to a person who may be affected by an adverse decision is to avoid the “practical injustice” which may occur when an opportunity to explain is lost, relying on Rv Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; HCA 6 at [38] per Gleeson CJ. In the context
… If, however, the Member becomes aware of information which is personal to the applicant and which might lead the Member to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision since member was notified by goal administrative that applicant was at correctional facility and Tribunal was suppose to book for transportation to bring applicant for hearing
(b) The Tribunal erred in finding that the Delegate from his history that were not “obvious” or “obviously open on the known material” cannot be sustained. The ground is the equivalent of suggesting that procedural fairness requires an applicant for review for protection visa decision to be provided with submissions prepared by the Department for the Minister explaining how the evidence might be reviewed, a contention which was rejected in M238 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 at 54;
(c) whether the Tribunal erred in finding that there was no procedural unfairness – whether the appellant was given practical, direct and non-misleading advice s to how material disclosed to him might be used by the Assistant Minister.
(d) The underlying purpose of the requirements of notice or disclosure as aspects of procedural fairness is another important consideration. It is to provide an opportunity for meaningful participation by the potentially aggrieved person and to enable the person fairly to respond to adverse matters.
(e) grounds giving rise to jurisdictional error. The observations serve, however, to highlight the materiality of the loss of [the applicant’s] opportunity to comment on matter which were significant to the Assistant Minister’s decision and about which he had not been given sufficient prior notice.
(f) The decision maker acted beyond its responsibility or acted improper purpose: this law violates the constitution
(errors in original)
The Minster’s submissions deal with the issue of the extension of time request. I agree with those submissions, and adopt them.
The application was lodged 28 days outside the 35-day time limit prescribed by s 477(1) of the Migration Act and therefore requires an extension of time. Under s 477(2) of the Migration Act, the Court may extend time for the making of an application if the applicant makes an application for an extension of time in writing, and the Court considers that it is necessary in the interests of justice to extend time.[28]
[28] EXU17 v Minister for Immigration and Border Protection [2018] FCA 1675 at [42]-[44].
The factors relevant to the Court’s consideration of whether time should be extended, are unconfined, but generally include:[29]
(a)the extent of the delay,
(b)whether there is a reasonable and adequate explanation for the delay,
(c)whether the proposed application is sufficiently arguable to support the application for an extension of time, and
(d)whether there is any prejudice to the respondents.
[29] SZTES v Minister for Immigration and Border Protection [2015] FCA 719; MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [39]-[58].
The proposed application for judicial review should have such prospects of success so as to not render the extension of time an exercise of futility.[30] The correct test to be applied by the Court in considering the merits of the proposed application is whether the grounds are “arguable”, “reasonably arguable”, “sufficiently arguable” or have “reasonable prospects of success”.[31] The Court must have regard to the grounds at an “impressionistic level”.[32]
[30] Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9].
[31] MZABP at [62]-[63].
[32] MZABP at 598.
As noted above, the applicant’s delay of 28 days is moderate. However, if an application has no prospect of success, an extension of time, even for a short period, may be refused.[33] In the “grounds” of the application for an extension of time and annexed to the applicant’s affidavit is a “personal statement”, which is in identical terms to the grounds in the application for an extension of time, the applicant claims that he was in prison at the time of the hearing before the Tribunal and was released on 25 October 2020. He asserts that he had no legal or other assistance to apply for review but was advised by his immigration case manager that he needed to apply to the Court for review of the Tribunal’s decision.
[33] SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14].
The applicant has not provided any evidence of when he was taken into custody. Whilst the applicant has attempted to proffer an explanation for the delay, he has not provided any evidence in support of his contentions, such as when he was taken into custody. Further, the Tribunal’s case notes indicate the applicant answered the Tribunal’s call two days before the first hearing invitation was sent to him and he was informed at that time that he needed to provide the Tribunal with his updated contact details. No updated details were provided. The Minister contends that his explanation is unsatisfactory. It is well established that it is an applicant’s responsibility to ascertain their review rights and any applicable time limits.[34]
[34] SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108.
Whilst there is no specific prejudice to the Minister beyond the public interest in the finality of administrative decision making, the mere absence of prejudice cannot of itself justify the exercise of the discretion sought by the applicant.[35] In any event, critically, the proposed application contemplated is entirely without merit and does not enjoy any reasonable prospects such as to warrant the grant of an extension of time.
[35] Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491.
As noted above, the applicant’s delay in the present case was 28 days, which is a moderate delay. He appears to have been having to deal with challenging personal circumstances at the relevant times. When he applied to the Tribunal, he was being held at VIDC. He was released in January 2020. The court book, which I received as evidence, records an attempt by the Tribunal to obtain updated contact details from the applicant.[36]
[36] CB 160.
On its face, the applicant’s application to the Tribunal was out of time. However, as the Tribunal, apparently correctly set out in a letter to the applicant dated 9 January 2020[37], the usual time limits did not apply because of problems in the notification of the decision of the delegate. The applicant’s complaints of procedural unfairness before the Tribunal have no substance. The case notes at CB 160 and 161 detail the considerable efforts made by the Tribunal to keep in contact with the applicant.
[37] CB 129.
The Tribunal provided two hearing opportunities and the applicant failed to attend either of them. While I accept from the applicant’s affidavit accompanying his show cause application[38] and his oral submissions that he was in prison in Victoria at a critical time, he does not appear to have been effective in managing his own merits review application. Following his release from prison in October last year, the applicant was, once again, placed in immigration detention. His circumstances and the fact that he is a litigant in person with little understanding of the legal process provides a plausible explanation for his delay in coming to court.
[38] Which I received as a submission.
I also accept that the applicant paid someone to assist him with his merits review and judicial review applications, and that that assistance has not been effective. The critical problem, however, is that the application to the Court lacks merit. In that regard, I agree with and adopt the Minister’s submissions.
Proposed Ground 1 contends that the Tribunal erred in failing to find that the delegate made a jurisdictional error by denying the applicant procedural fairness. Critically, any defects and irregularities in the delegate’s decision were cured by the Tribunal’s decision.[39] The Court has no jurisdiction to review the delegate’s decision.[40]
[39] Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294; Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495; Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344; Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314.
[40] Sections 476(2)(a) and 476(4) of the Migration Act.
Proposed Ground 2 contends that the Tribunal made several errors of law. The particulars refer to scenarios that did not occur in this matter and make no attempt to grapple with the Tribunal’s decision, which was a lack of satisfaction where the applicant had failed to attend the hearing.
To the extent that the particulars refer to the Tribunal failing to afford him procedural fairness, these contentions cannot be sustained in circumstances where the applicant was afforded two opportunities to appear before the Tribunal and failed to attend on both occasions.
The second hearing invitation dated 12 August 2020, properly invited the applicant to appear on 26 August 2020 pursuant to s 425 of the Migration Act, but the applicant failed to attend at the scheduled time.[41] The hearing invitations complied with the relevant legislative requirements because it:
(a)was sent to the applicant by email to the last email address provided to the Tribunal in connection with the review: s 441A(5)(b);
(b)afforded the applicant the prescribed period of notice of the hearing as required by s 425A(3) and regulation 4.35D of the Migration Regulations 1994 (Cth);
(c)advised the applicant of the effect of s 426A (namely, the consequences of the failure of the applicants to appear before the Tribunal); and
(d)informed the applicant of the time, date and location of the hearing, as required by s 425A(1).
[41] CB 143-145.
Moreover, the applicant was sent two SMS hearing reminders, five business days and one business day prior to the scheduled hearings[42] and was telephoned on three occasions on the day of the first scheduled hearing.[43] In the circumstances, the Tribunal’s power to proceed under s 426A(1A)(a) of the Migration Act was properly enlivened and reasonably exercised.
[42] CB 160-161.
[43] CB 139.
No arguable case for jurisdictional error is apparent when the grounds are considered at an impressionistic level. Due to the lack of merit it is not necessary in the interests of the administration of justice to grant the extension of time.
CONCLUSION
I conclude that the interest of the administration of justice do not require an extension of time in this case.
I will order that the application for an extension of time be refused under s 477(2) of the Migration Act.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court’s scale. The applicant did not wish to be heard on costs. The applicant did not want to be heard on the question of costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 19 February 2021
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