CKF18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 946
Federal Circuit and Family Court of Australia
(DIVISION 2)
CKF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 946
File number(s): MLG 1269 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 17 November 2022 Catchwords: MIGRATION – Extension of time in which to file application for judicial review – application for review approximately 244 days out of time – whether necessary in the interests of the administration of justice to extend time - factors considered – HELD not necessary in the interests of the administration of justice for time for filing to be extended Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44.
Migration Act 1958 (Cth), ss 425, 425A, 426A(1) 426(1A)(b), 426A(1B), 426(B), 477(1), 477(2), 477A(2).
Cases cited: Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760.
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 10 November 2022 Place: Melbourne Advocate for the Applicant: Appeared In Person Solicitor for the Applicant: None Counsel for the Respondents: Mr S Mak Solicitor for the Respondents: Australian Government Solicitor
Table of Corrections 18 November 2022 The court was mistakenly advised of an incorrect amount of costs sought by the Minister. In paragraph 33 the two references to ‘$6,000’ have been corrected to ‘$3,930’. ORDERS
MLG 1269 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CKF18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
17 NOVEMBER 2022
Amended pursuant to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to 'Minister for Immigration, Citizenship and Multicultural Affairs.’
2.The Application filed on 10 May 2018 be dismissed.
3.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $3,930
$6,000.
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 BLAKE
This is an application to extend the time for filing of an application of judicial review. If an extension of time is granted, the Applicant then seeks judicial review of decisions made by the Administrative Appeals Tribunal (‘Tribunal’). For the reasons the follow, I have decided not to extend the time for filing and to dismiss the application for judicial review.
BACKGROUND
The Applicant is a Malaysian national. The Applicant arrived in Australia on 5 October 2016. He first applied for a Protection (Class XA) (subclass 866) visa (‘Visa’) on 17 November 2016. A subsequent application was filed on 7 February 2017.
On 21 April 2017, a delegate of the Minister ('delegate') refused to grant the Applicant the visa.
On 25 April 2017, the Applicant applied to the Tribunal for review of the delegate's decision.
On 20 July 2017 the Applicant was invited to attend a hearing scheduled for 9.30am on 9 August 2017 to give evidence and present arguments relating to the issues arising in the Applicant’s case.
On 2 August 2017, the Tribunal sent a text message to the Applicant’s mobile telephone number. The text message reminded the Applicant that his hearing was set down to occur on 9 August 2017. A further text message reminder was sent by the Tribunal to the Applicant on 8 August 2017.
The Applicant did not attend the hearing on 9 August 2017. As a result of the Applicant’s non-appearance the Tribunal dismissed the application for review on the basis of non-appearance (‘non-appearance decision’). The non -appearance decision is brief and I set it out in full below:
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 9 August 2017. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant was about the hearing. No reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Tribunal notified the Applicant of the non-appearance decision by correspondence dated 9 August 2017. The Applicant was provided with a copy of the non-appearance decision and was advised, among other things, that he could apply in writing for reinstatement of the application for review within 14 days being 23 August 2017.
The Applicant did not seek reinstatement of the application.
On 24 August 2017, having not heard from the Applicant, the Tribunal confirmed the decision to dismiss the application due to non-appearance (‘confirmation decision’). The Applicant was notified of this decision in writing on 25 August 2017. The confirmation decision is of short compass and I set it out below:
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 April 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 9 August 2017 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.On 9 August 2017 the applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
The Applicant filed an Application for Review along with a supporting affidavit in this Court on 10 May 2018. The matter was ultimately set down by Registrar Hird for a hearing in respect of extension of time, and if time is extended, a Final Hearing.
The Applicant relies on the Application for Review filed 10 May 2018 (‘Application’) and on his affidavit filed 10 May 2018. The Applicant did not file an outline of submissions or other material prior to the hearing despite being given the opportunity to do so. The Minister relies on the Court Book, a Supplementary Court Book and a written outline of submissions filed prior to the hearing.
consideration
The decision of the Tribunal was made on 24 August 2017. Under to s. 477(1) of the Migration Act 1958 (‘Act’), an application made to this Court must be filed within 35 days of the date of the relevant decision.
The Application was filed on 10 May 2018. The Application is therefore approximately 244 days out of time.
Under section 477(2) of the Act, this Court may extend the 35 day time period for the filing of an application where, among other things, the Court considers it is necessary in the interests of the administration of justice to do so.
The High Court has recently had the opportunity to consider the phrase ‘is necessary in the interests of the administration of justice’. In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant services and Multicultural Affairs [2022] HCA 28 (‘Katoa’), the High Court considered section 477A(2) of the Act. Section 477A(2) of the Act is in the same terms as section 477(2), save that it applies to the Federal Court of Australia. At paragraphs [12] and [13] of their reasons, the majority of Kiefel CJ, Gageler J, Keane J and Gleeson J stated:
[12]On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
[13]In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. Those principles, which are non-exhaustive of the factors that may be relevant to an extension of time under s 477A(2), include that “[t]he merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted”.
An issue in Katoa was whether a judge who undertakes more than an impressionistic consideration of the proposed grounds of review when considering whether to extend time commits error. On that issue, the majority stated:
[19]It follows that the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.
In the Application, the Applicant set out the following grounds as to why time should be extended:
1.I admit that I was late to sent because at that time I did not have enough finance to come to court because I was a holder of a bridging visa C.
2.I admit that I was unable to hire a lawyer because of the very high cost and I did not have the permission to work to cover the costs of the lawyer.
The Applicant also set out the following grounds of review in the Application.
1.On 11.09.2017, I am trying to apply reinstatement to AAT according to Migration Act 1958 – sect 426A(2). This section does not prevent the tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the Applicant’s appearance before it as rescheduled. But tribunal refuse because confirms the decision to dismiss.
2.Therefore, I appeal to the court in of the 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) there is a description and authorizing me to make such actions.
During the hearing, I asked the Applicant to expand upon both his application to extend the time for filing and his substantive application. In relation to his application to extend time, the Applicant submitted, among other things, that he has a two year old infant with his partner, that he does not have work rights and cannot survive here and that he should be responsible for the upkeep of his family. In relation to his substantive application, he told me that he was living in Griffith at the time of the hearing, there was no network coverage and it was difficult to check his emails. He said he attempted to contact the Department, but lost his phone. He also stated that he had to create a new email account, and that was when he was informed that his visa had expired. He asked the Court to give him an opportunity to survive in Australia.
The starting point in considering applications of this nature are the words of the Act. In this case, the Parliament has selected 35 days as being the appropriate period in which applications are to be filed, subject to the discretion afforded to the Court under section 477(2) of the Act.
The length of the delay in this case is significant. The Applicant has not filed a few days, or even a few weeks, out of time. In Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470, the High Court noted that in the circumstances in that case where the delay in filing had been many months, a case would need to be ‘exceptional’ before the time for commencing proceedings was enlarged.
In the Application, the Applicant seeks to explain the delay by saying that he lacked access to finance and therefore lacked access to a lawyer. The fact that an applicant does not have access to a lawyer is a factor which may be taken into account when considering whether to extend time: see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5]. While I can understand and accept that lack of access to a lawyer may account for some delay in filing the Application, the Applicant has not provided any explanation or evidence as to why these factors prevented him from filing in this Court for 244 days. Nor has he placed before the Court any evidence of his attempts to engage a lawyer from the time he received the decisions of the Tribunal to the time he filed the Application in this Court. In these circumstances, it is not possible for the Court to place significant weight on the Applicant’s lack of access to a lawyer.
The Minister did not contend that he would suffer from any form of prejudice. That is an appropriate position to take and I will not have regard to any prejudice to the Minister in determining the Application.
Finally, it is necessary to consider the merits of the substantive application. The Applicant would seek to review both the non-appearance decision and the confirmation decision.
The non-appearance decision was made by the Tribunal under section 426A(1A)(b) of the Migration Act 1958 (Cth) (‘Act’). That subsection relevantly provides that the Tribunal may by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal. Subsection (1) of section 426A of the Act sets out the preconditions that must be satisfied before the Tribunal can exercise the power under subsection (1A).
Subsection (1B) to section 426A of the Act relevantly provides that if the Tribunal dismisses the application, an applicant may within 14 days after receiving notice of the decision, apply to the Tribunal for reinstatement of the application. If an application is not made, the Tribunal ‘must’ confirm the decision to dismiss the application.
It is against the statutory background, which I have summarised briefly above, that the Applicant brings his substantive application. Ground 1 of the Grounds of review is set out above. The ground pressed is misconceived and has no prospect of success having regard to the following:
(a)The Applicant was invited to attend the Tribunal hearing. The invitation satisfied the requirements in section 425 and 425A of the Act;
(b)The Applicant admits he did not attend the Tribunal hearing;
(c)The Applicant was notified of the non-appearance decision. The notification satisfied the requirements of section 426B of the Act;
(d)The Applicant did not apply for reinstatement of his application within the time period set down in the Act. The failure to apply for reinstatement meant the Tribunal was required to the decision to dismiss the application.
The Applicant raises section 426A(2) of the Act in Ground 1. It was open to the Tribunal to take the course noted in section 426A(2) but it did not do so. Instead, the Tribunal took the course open to it under section 426A(1A)(b). It is difficult to see how this choice by the Tribunal gives rise to any error, and the Applicant has not been able to expand upon how any error arises.
Ground 2 raises section 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Section 44 does not apply to the present matter. Moreover, the ground is not particularised. Failure to particularise a ground is a sufficient basis for it to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
When the matters above are considered and weighed, the Application is not sufficiently arguable. The merits of the Application do not weigh in favour of time being extended.
CONCLUSION
I have set out above and weighed each of the relevant matters referred to in Katoa and in earlier authorities. When those matters are weighed together, I am of the view that it is not necessary in the interests of the administration of justice for the time for filing to be extended in this matter. Accordingly, the application to extend time will be dismissed.
The Minister has been wholly successful in this case. He seeks costs of $3,930. It is appropriate that the Minister receive his costs in this matter. I will make an order for costs according to scale fixed in the sum of $3,930.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 17 November 2022
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