CNK22 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 876
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CNK22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 876
File number(s): SYG 1039 of 2022 Judgment of: JUDGE KAUR-BAINS Date of judgment: 12 September 2024 Catchwords: MIGRATION – Judicial review – application for an extension of time – Minister required by Act to notify the Applicant of the delegate’s decision – dismissal for non-appearance. Legislation: Migration Act 1958 (Cth) ss 36, 477, 494B, 494C
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Cases cited: DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492 Division: Division 2 General Federal Law Number of paragraphs: 14 Date of hearing: 11 September 2024 Place: Sydney Counsel for the Applicant: No appearance by or on behalf of the Applicant Solicitor for the First Respondent: Ms Q Ren of Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1039 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CNK22
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Application for an extension of time and the proceedings are dismissed pursuant to r 13.06(1)(c) 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.
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 Kaur-Bains
The Applicant seeks an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act), in which to apply for judicial review of a decision of the Second Respondent (Tribunal) dated 21 September 2021. Pursuant to s 477(1) of the Act, an application for judicial review was required to be filed 35 days after the date of the migration decision. The migration decision is taken to have been made on 21 September 2021. The application for an extension of time was filed on 18 July 2022. Thus, the application for judicial review is approximately 265 days out of time.
BACKGROUND
Protection Visa
The Applicant is a citizen of China who arrived in Australia on 31 October 2016. On
9 July 2018 the Applicant applied for a Protection (class XA)(subclass 866) visa (visa), on the basis he feared persecution from Chinese law enforcement.
On 3 August 2018 the Department of Home Affairs sent the Applicant an acknowledgement of a valid application for a visa. On 14 August 2020 a delegate of the First Respondent (Minister) emailed the Applicant requesting further information in relation to his visa application, owing to the application lacking substantiating details. The Applicant did not provide any further material as requested by the delegate. The delegate was not satisfied the Applicant was someone in respect of whom Australia had protection obligations pursuant to s 36(2)(a) and (aa) of the Act. The delegate sent the Applicant a notification of refusal by email dated
16 September 2020. The email informed the Applicant he was entitled to apply to the Tribunal for review of the decision and the time within which such application needed to be made.
Tribunal’s Decision
On 29 October 2020 the Applicant lodged with the Tribunal an application for review of the delegate’s decision. By letter dated 6 January 2021 the Tribunal wrote to the Applicant identifying the application may have been lodged out of time and sought the Applicant’s comments. The Applicant responded by saying his protection visa application had been prepared by a lady in Auburn, who had acted on his behalf and received all the correspondence on behalf of him. The Applicant said he recently found out that the lady had disappeared and her company had closed down. The Applicant told the Tribunal that he only recently found out he had overstayed his visa “which was caused by this lady’s criminal offence.”
First Tribunal’s Decision
The Tribunal in its decision dated 3 February 2021 noted that pursuant to ss 494B and 494C of the Act, the Applicant was taken to have received a valid notification from the Department in relation to the delegate’s decision. The Tribunal found the application was lodged out of time and it had no jurisdiction in the matter.
Second Tribunal’s Decision
On 23 August 2021 the Applicant lodged another application for review of the same delegate’s decision with the Tribunal. In its reasons dated 21 September 2021 the Tribunal determined it had no jurisdiction in respect of the second review application for the following reasons:
Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate's decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.
The Tribunal found as the Applicant had already sought a review of the delegate’s decision which the Tribunal had already decided, the delegate’s decision was no longer a reviewable decision (second Tribunal decision).
PROCEDURAL HISTORY
On 18 July 2022 the Applicant filed an application and supporting affidavit seeking an extension of time and judicial review of the second Tribunal decision. A Notice of Listing was sent by email on 12 August 2024 notifying both parties of the date, time and location of the hearing. By email dated 5 September 2024 from the Minister’s solicitor, the Court was informed the Minister’s solicitor had contacted the Applicant by telephone and received confirmation that he would appear at the hearing before the Court on 11 September 2024. The Applicant also requested the assistance of a Mandarin interpreter.
At 10:15am of the morning of the hearing, there was no appearance by or on behalf of the Applicant in Court. The Court called the Applicant on the mobile number on his application, to which there was no answer. A telephone message was left stating the Court had called as the Applicant’s matter had been listed for hearing and for the Applicant to return the telephone call. At 10:38am the matter was called 3 times outside of the Courtroom, with no appearance from the Applicant. As a result of the non-appearance at the hearing by the Applicant, the Minister made an application that the proceedings be dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
RELEVANT LAW
Rule 13.06(1)(c) of the Rules provides:
13.06 Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
…
(c) if the absent party is an applicant – dismiss the application;
…
CONSIDERATION
I raised some issues with the Minister’s representative to satisfy myself that the Applicant had been notified of the delegate’s decision as required by s 66 of the Act. Relevantly, whether the delegate’s decision had been sent to the last email address provided to the Minister for the purposes of receiving documents pursuant to s 494B(5)(b) of the Act and therefore taken to have been received by the Applicant pursuant to s 494C(5) of the Act. The Minister’s representative referred me to the change of email address lodged by the Applicant on
11 June 2019 at Court Book (CB) 39 and the Full Federal Court decision in DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492. I note the delegate’s decision dated 16 September 2020 at CB 59 was sent to the email address noted on the change of email address. Therefore, it appears the delegate’s decision had been sent to the “last” email address provided to the Minister.
At 10.59am the matter was again called 3 times outside of the Courtroom, with no appearance from the Applicant.
In light of the contents of the Affidavit of Service of Ms Ren filed 2 September 2024 and the email dated 5 September 2024 referred to in [8] of this judgment, I am satisfied the Applicant had sufficient notice of the Extension of Time Hearing. Therefore, the application for extension of time and the proceedings are dismissed pursuant to r 13.06(1)(c) of the Rules.
COSTS
The Minister made an application that the Applicant pay the Minister’s costs fixed in the amount of $4,189.38. I am satisfied this is an appropriate amount in the circumstances and order the Applicant pay the Minister’s costs fixed in the amount of $4,189.38.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 12 September 2024
0
4
2