CLL22 v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 227
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CLL22 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 227
File number(s): SYG 1014 of 2022 Judgment of: JUDGE ZIPSER Date of judgment: 21 February 2025 Catchwords: MIGRATION – application for reinstatement of application for extension of time to apply for judicial review – where extension of time application dismissed for non-appearance at court hearing – whether applicant provided reasonable excuse for not appearing at court hearing – whether arguable case on merits of extension of time application and judicial review application Legislation: Migration Act 1958 (Cth) s 426(1A), s 426A(1C), s 477(1), s 477(2), s 477A(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c), r 17.05(2)(a)
Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
CLL22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1263
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 237 ALR 64
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 28 January 2025 Place: Parramatta Applicant: Self-represented, by telephone Solicitor for the Respondents: Mr J Djasmeini of MinterEllison ORDERS
SYG 1014 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLL22
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application in a proceeding filed on 23 December 2024 is dismissed.
3.The applicant 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
This is my second judgment in this matter. In my first judgment (see CLL22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1263 published on 25 November 2024 (First Judgment)), I made orders dismissing the applicant’s application for judicial review to this Court under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) because she did not appear at the final hearing on 14 November 2024.
On 16 December 2024, the applicant lodged in this Court an application in a proceeding which was accepted for filing on 23 December 2024. While the relief sought in the application was unclear, the applicant asserted in an accompanying affidavit accepted for filing on 23 December 2024 (Reinstatement Affidavit) that she was not notified of the hearing date on 14 November 2024. In the circumstances, I treated the application accepted for filing on 23 December 2024 as an application for an order pursuant to r 17.05 of the Rules to set aside the dismissal order made on 25 November 2024, commonly referred to as a reinstatement application (Reinstatement Application).
BACKGROUND UP TO HEARING OF REINSTATEMENT APPLICATION ON 28 JANUARY 2025
Background up to commencement of proceedings in this Court
Because of issues which arose at the hearing of the Reinstatement Application on 28 January 2025, it is appropriate to set out aspects of the background of this matter. Most of the information in this background is sourced from documents in a court book prepared by the first respondent filed in this Court on 20 October 2022 (Court Book).
On 20 December 2017, the applicant lodged an application for a protection visa (PVA). It appears that the applicant lodged the PVA through an online portal maintained by the Department of Home Affairs (Department). According to information in the footer on page 1 of the PVA, the PVA was submitted by “Nanfangzhijia” from the organisation Auyangtong International. According to an ASIC search, the business name Auyangtong International is owned by a person named Jie Yu. At the hearing in this Court on 28 January 2025, the applicant told the Court that a person named Jie Yu was her “lawyer” in respect of her application to the Court. The applicant’s evidence on 28 January 2025 appeared to be that Jie Yu assisted the applicant in relation to her visa application over a period of time. The name “Nanfangzhijia” is not the applicant’s name and bears no resemblance to her name.
The PVA included a contact email address for the applicant which was …@gmail.com (Nanfang Address). At the hearing in this Court on 28 January 2025, the applicant told the Court that this was not her email address and she did not recognise the email address. Further, the letters in the email address bear no resemblance to the applicant’s name and so do not disclose her identity. Instead, there appears to be a similarity between letters in the Nanfang Address and the name “Nanfangzhijia” in the page 1 footer of the PVA. If the applicant’s evidence to the Court is truthful, it would appear that a person assisting the applicant, probably associated with the business Auyangtong International, operated the Nanfang Address.
On 20 December 2017, the Department emailed a letter to the applicant at the Nanfang Address acknowledging receipt of the PVA.
On 19 October 2020, a delegate of the first respondent refused to grant the applicant a protection visa. On the same day, the Department emailed a copy of the refusal decision to the applicant at the Nanfang Address.
On 4 November 2020, an application in the name of the applicant was lodged with the Administrative Appeals Tribunal (Tribunal) seeking review of the delegate’s decision. This suggests that the person who operated the Nanfang Address received the delegate’s decision and took steps leading to the lodgement of the application in the Tribunal. The application lodged with the Tribunal again included the Nanfang Address as a contact email address for the applicant.
On 11 November 2020, the Tribunal received from the Nanfang Address an email requesting that the applicant be sent a “referral letter for Medicare”.
On 11 February 2021, the Tribunal received from the email address …@yahoo.com.au an email concerning the applicant’s case (Owenjane Address). At the hearing in this Court on 28 January 2025, the applicant stated that this was not her email address and she did not recognise the address. Further, the letters in the email address bear no resemblance to the applicant’s name and so do not disclose her identity. In a context where the Tribunal did not recognise the Owenjane Address, on 12 February 2021 the Tribunal sent an email to the Nanfang Address concerning the email from the Owenjane Address. A few hours later the Tribunal received an email from the Nanfang Address in reply.
On 30 November 2021, the Tribunal emailed a letter to the applicant at the Nanfang Address inviting the applicant to attend a hearing before the Tribunal on 15 December 2021.
On 15 December 2021, the applicant did not attend the hearing. Notes by the Tribunal in the Court Book indicate that a Tribunal officer sent reminder text messages to the applicant on 13 December 2021 and 17 December 2021 in respect of which “delivery failed”, suggesting the possibility that a phone number provided for the applicant to the Tribunal was disconnected.
On 15 December 2021, the Tribunal decided to dismiss the PVA pursuant to s 426A(1A) of the Migration Act 1958 (Cth) (Act).
On 17 December 2021, the Tribunal, by letter sent by email to the Nanfang Address, notified the applicant of its decision on 15 December 2021. The letter stated that the applicant could apply for reinstatement of the application by 31 December 2021 and any reinstatement application “should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted”.
On 31 December 2021, the Tribunal received an email from the Nanfang Address which attached a request in the name of the applicant to reinstate her application.
On 4 January 2022, the Tribunal, pursuant to s 426A(1C) of the Act, confirmed the decision to dismiss the application.
On 5 January 2022, the Tribunal, by letter sent by email to the Nanfang Address, notified the applicant of its decision.
Proceedings in this Court up to hearing on 14 November 2024
On 14 July 2022, the applicant filed in this Court an application seeking judicial review of the Tribunal’s decision dated 4 January 2022 (Court Application). The footer on page 1 of the Court Application included contact details for the applicant, including the Nanfang Address as the applicant’s contact email address.
During the hearing on 28 January 2025, the applicant stated that she authorised her “lawyer” and “legal representative” Jie Yu to prepare the Court Application.
In light of the time limit for filing applications in s 477 of the Act, the applicant filed the Court Application about 156 days after the expiry of the time limit. The Court Application included the following grounds in support of her request to extend time (reproduced as written):
1.I received decision from AAT on Jan 2022
2.During to Covid-19 and long time, lock-down, my mental health has declined
3.The appeal was delayed and extension of time is requested.
The Court Application was accompanied by an affidavit in the name of the applicant filed on 14 July 2022. The applicant stated in the affidavit (reproduced as written):
1.My protection visa application was refused and AAT dismissed my appeal in Jan 2022
2.During Covid-19, Covid Delta and Covid Micron, Long time Lock-down period, my mental health declined, I could not think properly and my appeal was delayed to lodge in Court.
3.Extension of time grant is applied
The Court Application included grounds as follows (reproduced as written):
1.AAT failed to consider my fear and risk of harm upon return to China.
AAT failed to consider the evidence before them, I am not fit.
2.AAT failed to exercise a reasonable apprehension or actual bias.
3.AAT failed to consider my situation separately.
On 9 July 2024, the Court sent an email to the parties, including to the applicant at the Nanfang Adress, notifying the applicant that the matter was listed for callover by telephone on 30 July 2024.
On 30 July 2024, the applicant appeared by telephone at the callover, assisted by an interpreter. The fact that the applicant appeared suggests that the person who operated the Nanfang Address notified the applicant of the listing. Consistent with this inference, the applicant stated at the hearing in this Court on 28 January 2025 that her “lawyer” notified her of the listing on 30 July 2024.
According to evidence given by the applicant at the hearing on 28 January 2025, at the listing on 30 July 2024 the applicant provided the registrar with an additional email address for the Court to communicate with the applicant (Additional Address). There is an electronic “file note” on the Court’s file dated 30 July 2024, consistent with the applicant’s evidence given on 28 January 2025, which states:
Email address: Please include [Additional Address] into all correspondence sent to the applicant, in addition to the existing email from the application.
On 30 July 2024, the Court emailed a copy of orders made by the registrar on 30 July 2024 to the parties, including to the applicant at the Nanfang Address but not also to the Additional Address. The email stated in part:
Reminder for all applicants: If you change address, telephone number, email address or lawyer, please ensure you complete a Notice of Address for Service form (available from the Forms section on the Federal Circuit and Family Court website) and file this with the Court…
The applicant did not file a Notice of Address for Service form concerning the Additional Address.
On 26 September 2024, the Court sent an email to the parties, including to the applicant at the Nanfang Address but not also to the Additional Address, informing the parties that the matter was listed for hearing on 14 November 2024.
As explained in the First Judgment at [21]-[24], the applicant did not appear at the hearing on 14 November 2024 and, on application of the first respondent, the Court agreed to dismiss the Court Application under r 13.06(1)(c) of the Rules. On 25 November 2024, the Court emailed to the parties, including to the applicant at the Nanfang Address but not also to the Additional Address, the First Judgment and orders dated 25 November 2024.
Events from filing of Reinstatement Application in December 2024
On 16 December 2024, the applicant lodged in this Court the Reinstatement Application. The Reinstatement Application records that the applicant seeks the following interlocutory orders (reproduced as written):
1.Bias of the Honour, Judge of Federal Circuite and Family Court against the applicant.
2.Error of the Honour, Judge of Federal Circuite and Family court, in failing to hear the evidence given by the applicant
3.Erro of the Honour, Judge of Federal Circuite and Family court, in failing to identify the jurisdictional error made by the Second Respondent
The Reinstatement Application was accompanied by the Reinstatement Affidavit which, on its face, was signed by the applicant on 12 December 2024 before a justice of the peace. The applicant states in the Reinstatement Application:
The call over listing in court was 30 July, my husband and I called court phone number. I was not notified of hearing time after that call.
At the hearing on 28 January 2025, I explored with the applicant:
(a)how she became aware of the judgment and orders dated 25 November 2024 if the Nanfang Address was not her email address; and
(b)who prepared the Reinstatement Application and Reinstatement Affidavit.
The applicant stated that her “lawyer” Jie Yu told her that the Reinstatement Application and Reinstatement Affidavit needed to be prepared or else her visa would expire on 24 December 2024, that Jie Yu prepared the two documents, and that Jie Yu charged the applicant $5,800 for this work. The applicant also stated:
(a)following the listing on 30 July 2024, she was not informed about the hearing date on 14 November 2024 and so she was unaware of the hearing date;
(b)she was unaware of the First Judgment, which was emailed by the Court to the parties on 25 November 2024; and
(c)the outcome she wanted from the Reinstatement Application was for the Court to extend her visa so that she can stay in Australia.
If the applicant’s evidence to the Court is true, then it appears:
(a)At all relevant times, including in 2024, someone other than the applicant operated the Nanfang Address. Although it is not possible to make firm findings based on the limited and incomplete evidence available to the Court, this person may be Jie Yu.
(b)Between 26 September 2024 and 14 November 2024, the person who operated the Nanfang Address did not inform the applicant of information contained in an email from the Court to the Nanfang Address that the proceeding was listed for hearing on 14 November 2024.
(c)In November or December 2024 Jie Yu charged the applicant $5,800 for preparing:
(i)the Reinstatement Application which I consider is poorly prepared; and
(ii)the Reinstatement Affidavit which, on one view of things, includes an acknowledgement by Jie Yu that the person who operated the Nanfang Address (which may be Jie Yu) did not inform the applicant of information contained in an email from the Court to the Nanfang Address that the proceeding was listed for hearing on 14 November 2024.
I also consider that the Reinstatement Affidavit is unsatisfactory and misleading in explaining the circumstances in which the applicant came to be unaware of the hearing on 14 November 2024.
The Reinstatement Affidavit includes the Owenjane Address as a contact email address for the applicant. If the applicant’s evidence to the Court is true, then:
(a)The applicant did not operate the Owenjane Address.
(b)In light of the events on 11 and 12 February 2021 (see paragraph 10 above), although it is not possible to make firm findings based on the limited and incomplete evidence available to the Court, Jie Yu may have operated the Owenjane Address.
On 23 December 2024, the Court made orders listing the Reinstatement Application for hearing at 2 pm on 28 January 2025, and directing that the applicant file and serve any further evidence and a written submission by 14 January 2025. On the same day, the Court emailed the orders to the parties, including to the applicant at the Nanfang Address and the Owenjane Address.
On 21 January 2025, the Court sent a reminder email to the parties, including to the applicant at the Nanfang Address and the Owenjane Address, which re-stated the date, time and place of the hearing on 28 January 2025.
Prior to the hearing on 28 January 2025, the applicant did not file a written submission in accordance with the orders above.
HEARING OF REINSTATEMENT APPLICATION ON 28 JANUARY 2025
At the commencement of the hearing on 28 January 2025, Jonathan Djasmeini from Minter Ellison appeared for the first respondent. There was no appearance by or for the applicant.
My associate attempted to phone the applicant on a mobile number contained in the Reinstatement Application. The applicant answered the phone. The applicant stated that her “lawyer” Jie Yu lodged the Reinstatement Application in December 2024. She stated that she had not received an email from the Court notifying her of the hearing on 28 January 2025, and she was not otherwise aware of the hearing. If these statements are true, then the person who operates the Nanfang Address (see paragraph 5 above) and the Owenjane Address (see paragraph 10 above) did not inform the applicant about the content of emails from the Court on 23 December 2024 and 21 January 2025.
The applicant was content to appear at the hearing on 28 January 2025 by phone. Mr Djasmeini did not oppose this course. I permitted the applicant to appear by phone.
During the hearing, I explored with the applicant why she lodged the Reinstatement Application, which included payment of $5,800 to Jie Yu to prepare the documents. The applicant stated that on about 27 November 2024 her “lawyer” Jie Yu contacted her and told her that her visa would expire soon and she needed to prepare an extension. The applicant then authorised the “lawyer” to prepare documents, following which the “lawyer” prepared the Reinstatement Application and Reinstatement Affidavit. The applicant appeared to have no understanding of the true nature or purpose of the Reinstatement Application.
During the hearing, the applicant gave evidence under oath concerning why she did not appear at the hearing on 14 November 2024. She stated that she was not aware of the hearing. Her evidence was to the effect that the person who controlled the Nanfang Address, who she described as her “lawyer”, did not notify the applicant of the hearing date. Some other evidence given by the applicant is worked into some paragraphs above, including paragraph 33.
During the hearing, I told the applicant she must persuade the Court that there is an error in one or both of the decisions of the Tribunal dated 15 December 2021 and 4 January 2022. I invited the applicant to make submissions concerning this issue. The applicant’s recollection of her matter before the Tribunal between November 2020 and January 2022 was very limited. She did not recall the two decisions of the Tribunal. She was unable to make any submission concerning error in the Tribunal’s decisions. In relation to the task of identifying an error in the Tribunal’s decision, she stated that she had authorised her “lawyer” to prepare documents for the Court.
Since the applicant did not recall the decision of the Tribunal dated 4 January 2022, she was unable to explain her delay of about 156 days in filing the Court Application, other than that she authorised her “lawyer” to prepare an application to the Court.
PRINCIPLES FOR REINSTATEMENT
Rule 17.05(2)(a) of the Rules states:
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; …
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7] Ryan J stated:
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.
In FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] the Full Court stated that the primary judge is required to consider “whether or not it was in the interests of justice to reinstate the applicant’s application”. The Full Court at [53] added that “the factors that are often considered are not mandatory relevant considerations but potential aspects of what is in the interests of justice in a particular case”. The Full Court at [60] stated that there was nothing in MZYEZ at [7] which was inconsistent with the Full Court’s approach.
In CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4] Mortimer J stated:
As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
CONSIDERATION
Whether arguable case on judicial review
It is convenient to first consider whether there is an arguable case in respect of the Court Application.
The applicant filed the Court Application about 156 days after the expiry of the time limit in s 477(1) of the Act. Section 477(1) and (2) state:
(1)An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
Whether there is an arguable case in respect of the Court Application initially involves consideration of whether the applicant has an arguable case in respect of her application to extend time.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [12], the plurality stated in respect of the equivalent provision in s 477A(2) that “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” and “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”.
Length of applicant’s delay: The length of delay is about 156 days. This is a long period of time. The length of delay, if not satisfactorily explained, would weigh heavily against the applicant at the hearing of an application to extend time.
Reasons for delay: The entirety of the applicant’s evidence and explanation concerning her lengthy delay in filing the Court Application is set out in paragraphs 20 and 21 above. The evidence and explanation is unsatisfactory and deficient. The background to this matter set out above suggests that the applicant relied on another person to assist her with the Court Application. But it is ultimately the applicant’s responsibility to prepare evidence in support of the Court Application. The unsatisfactory explanation concerning the 156 day delay would weigh heavily against the applicant at the hearing of an application to extend time.
Prejudice to first respondent: If the Court Application is reinstated, the proceeding will again be listed for a final hearing. The first respondent will incur further costs. Despite this, Mr Djasmeini stated that there would be no substantial prejudice to the first respondent which could not be remedied by the making of a costs order.
Merits of underlying application: Ground 1 in the Court Application states:
AAT failed to consider my fear and risk for harm upon return to China. AAT failed to consider the evidence before them, I am not fit.
The meaning of this ground is not clear. If there is no error in the Tribunal’s decisions dated 15 December 2021 and 5 January 2022 to dismiss the application to the Tribunal for the reasons provided, then the Tribunal had no obligation to consider the applicant’s claims and evidence in support of the PVA, including her claim that she feared harm upon return to China. Ground 1 does not identify an arguable jurisdictional error in the Tribunal’s decision.
Ground 2 in the Court Application states:
AAT failed to exercise a reasonable apprehension or actual bias
The meaning of this ground is not clear. Further, the ground lacks 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 (NWWJ) at [37]; citing with approval WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. Ground 2 does not identify an arguable jurisdictional error in the Tribunal’s decision.
Ground 3 in the Court Application states:
AAT failed to consider my situation separately.
The meaning of this ground is not clear. Further, the ground lacks particulars. The “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ at [37]. Ground 3 does not identify an arguable jurisdictional error in the Tribunal’s decision.
The background to this matter set out above suggests that the applicant relied on another person to assist her with the Court Application, and that person may have misled or let down the applicant in a number of ways. In the circumstances, as referred to in Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at [23], “I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error” to the extent of “a mistake [which] clearly appears in the Tribunal’s reasons”. In relation to this step:
(a)I have turned my mind to whether there might have been a “fraud on the tribunal” as discussed in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 237 ALR 64 (SZFDE). The evidence before the Court does not establish there was a fraud on the Tribunal. While the person who controls the Nanfang Address may have let down the applicant in relation to the preparation of evidence, it is neither appropriate nor possible for the Court to speculate about the communications between the applicant and the person who controlled the Nanfang Address in the period leading up to the hearing before the Tribunal in December 2021. Even if the person who controls the Nanfang Address did not tell the applicant about the hearing date before the Tribunal in December 2021, this is different to the conduct of the agent discussed in SZFDE who actively discouraged the applicant from attending the hearing.
(b)I have considered the decisions of the Tribunal dated 15 December 2021 and 4 January 2022. I cannot identify a mistake which clearly appears in the Tribunal’s reasons.
Conclusion relating to whether arguable case on merits: In conclusion, based on the materials before the Court at the hearing on 28 January 2025, if there was a hearing of an application for an extension of time under s 477(2) of the Act relying on evidence presently before the Court, it is highly likely that the application would be dismissed. I do not consider that the applicant has an arguable case in respect of the Court Application. As stated by Mortimer J in CAL15 at [4], “if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice” and “it is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case…”.
Whether reasonable excuse for non-appearance at hearing in November 2024
On 9 July 2024, the Court sent an email to the parties, including to the applicant at the Nanfang Address, notifying the applicant that the matter was listed for callover by telephone on 30 July 2024. On 30 July 2024, the applicant appeared by telephone at the callover, assisted by an interpreter. The fact that the applicant appeared suggests that the person who operated the Nanfang Address notified the applicant of the listing.
At the listing on 30 July 2024, the applicant provided the registrar with the Additional Address for the Court to communicate with the applicant. On 30 July 2024, the Court emailed a copy of orders made by the registrar on 30 July 2024 to the parties, including to the applicant at the Nanfang Address but not also to the Additional Address. The email stated in part:
Reminder for all applicants: If you change address, telephone number, email address or lawyer, please ensure you complete a Notice of Address for Service form (available from the Forms section on the Federal Circuit and Family Court website) and file this with the Court…
The applicant did not file a Notice of Address for Service form concerning the Additional Address.
On 26 September 2024, the Court sent an email to the parties, including to the applicant at the Nanfang Address but not also to the Additional Address, informing the parties that the matter was listed for hearing on 14 November 2024. The applicant gave evidence to the Court on 28 January 2025 to the effect that the person who controls the Nanfang Address did not tell her about the hearing date.
At the hearing on 28 January 2025, the applicant gave evidence over the telephone and through an interpreter. In this context, it was difficult for the Court to assess whether her evidence was truthful.
Even if the person who controls the Nanfang Address did not tell the applicant about the hearing date, I consider that the applicant’s excuse for not appearing at the hearing on 14 November 2024 was not reasonable or adequate. The applicant chose to include as her address for service in the court proceeding the Nanfang Address in a context where:
(a)She did not control the address. Instead, another person controlled the address.
(b)By September 2024, it would have been evident to a person in the applicant’s position acting conscientiously that the person who controlled the Nanfang Address was not reliable in informing the applicant about matters or in assisting her with her proceedings in the Tribunal and in this Court. A principal reason is that, in a context where the applicant filed the Court Application 156 days late, if the applicant had acted conscientiously, she would have been aware that the person who controlled the Nanfang Address was responsible for this significant delay. Another reason is that I consider that either:
(i)the applicant was aware; or
(ii)if the applicant had acted conscientiously, she would have been aware,
that the person who controlled the Nanfang Address contributed to the applicant not attending the hearing before the Tribunal on 15 December 2021. As stated in paragraph 45 above, the applicant’s recollection of her matter before the Tribunal between November 2020 and January 2022 was very limited, and she did not recall the two decisions of the Tribunal. In the circumstances, there was no utility in exploring with the applicant at the hearing in this Court on 28 January 2025 why she did not attend the hearing before the Tribunal on 15 December 2021.
If the person who controls the Nanfang Address did not tell the applicant about the hearing date on 14 November 2024, I accept that this would be the direct reason for the applicant not attending the hearing. However, whether or not the applicant’s excuse for not appearing at the hearing on 14 November 2024 was reasonable or adequate requires consideration of additional matters, including the reliability of the person who controls the Nanfang Address in informing the applicant about matters. For reasons explained in the above paragraph, I consider that it would have been evident to a person in the applicant’s position acting conscientiously that the person who controlled the Nanfang Address was not reliable in informing the applicant about matters or in assisting her with her proceedings in the Tribunal and in this Court. If the applicant was not aware that the person who controlled the Nanfang Address was not reliable, I consider that this was because the applicant was not conscientious in relation to the court proceeding.
To the extent that the reasonableness or adequacy of the applicant’s excuse requires consideration of whether I accept her evidence at the hearing on 28 January 2025 that the person who controls the Nanfang Address did not tell her about the hearing date on 14 November 2024, I am not persuaded that the person who controls the Nanfang Address did not tell her about the hearing date. The applicant did not provide sufficient evidence to the Court, in particular concerning her relationship and past communications with the person who controls the Nanfang Address, to persuade me that that person did not tell her about the hearing date.
For the above reasons, the applicant’s excuse for not appearing at the hearing on 14 November 2024 is not reasonable or adequate.
Prejudice
The first respondent does not claim to be prejudiced by a reinstatement, although there is necessarily some prejudice caused by reason of having to deal with the Reinstatement Application and, if the Reinstatement Application succeeds, a further hearing of the Court Application. However, given that the first respondent does not make a specific claim of prejudice, I will weigh this matter as being neutral to the question of the exercise of the discretion to reinstate.
Conclusion
As stated above, first, based on the materials before the Court at the hearing on 28 January 2025, if there was a hearing of an application for an extension of time under s 477(2) of the Act relying on evidence presently before the Court, it is highly likely that the application would be dismissed. Second, the applicant’s excuse for not appearing at the hearing on 14 November 2024 is not reasonable or adequate. In all of the circumstances, it is not in the interests of justice to reinstate the Court Application.
COSTS
Mr Djasmeini stated that, if the Reinstatement Application was dismissed, the first respondent sought an order that the applicant pay costs in the amount of $1,000, which amount was less than the first respondent’s solicitor/client costs. This amount appears reasonable taking into account the need for the first respondent to prepare for and attend a hearing in Parramatta. The applicant did not oppose this amount. I will make an order in this amount.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 21 February 2025
0
11
2