CNU16 v Minister for Immigration
[2018] FCCA 864
•12 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CNU16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 864 |
| Catchwords: MIGRATION – Protection visa – judicial review. |
| Legislation: Migration Act 1958 (Cth), ss. 425, 425A, 426, 426A, 441A, 444 , 477 Migration Regulations 1994 (Cth), r. 4.21 |
| Cases cited: Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 Applicant A2 of 2002 v Minister for Immigration and Multicultural Indigenous Affairs [2003] FCA 576 |
| Applicant: | CNU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 819 of 2016 |
| Judgment of: | Judge Howard |
| Hearing date: | 12 February 2018 |
| Date of Last Submission: | 12 February 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 12 February 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
That the Application filed 9 September 2016 and Amended on 21 November 2016 be dismissed.
That the Applicant pay the First Respondent’s costs fixed in the sum of $3,667 within three (3) months from the date of this Order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 819 of 2016
| CNU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
A.These reasons were delivered ex tempore on 12 February 2018 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
The applicant filed an application on 9 September 2016 and amended that application on 21 November 2016. The application seeks that the court grant an extension of the date for filing of the application in accordance with section 477(2) of the Migration Act 1958 (Cth) (“the Act”).
The applicant is a citizen of Bangladesh. He arrived in Australia on 6 May 2013. Such an arrival is referred to as an unauthorised maritime arrival. One week after his arrival, he applied for a protection class XA visa, which is generally referred to as a protection visa. The applicant, in his application for the visa, stated that he feared harm from members of the Awami League, because the applicant was a supporter of the Bangladesh National Party, known as the BNP.
The claim was assessed by a delegate of the Minister. On 17 November 2014, the delegate decided to refuse to grant the protection visa. Two days later, on 19 November 2014, the applicant sought a review of the delegate’s decision. This review was, of course, sought before the Tribunal, which is now known as the Administrative Appeals Tribunal. That application was lodged by lawyers known as Craddock Murray Neumann Lawyers. Those lawyers indicated that they had instructions to lodge the application, but did not have instructions to otherwise assist the applicant. The lawyers indicated that they were not acting as the applicant’s authorised recipient. All correspondence was requested to be directed to the applicant personally. A postal address was provided: 7 St Quentin Road, Petrie, Queensland 4502. Also, a mobile phone number was provided.
On 13 October 2015, the Tribunal sent a letter to the applicant at the address that had been provided, that is, the postal address, inviting him to appear before the Tribunal to give oral evidence and to present arguments. Now, that particular hearing invitation, as I say, was sent to the postal address to which I have referred at 7 St Quentin Road, Petrie, Queensland. The hearing was to take place on 25 November 2015. The applicant did not reply to the hearing invitation, so on 18 November 2015 and again on 24 November 2015, the Tribunal sent two text messages to the applicant at the mobile telephone number that he had provided. The applicant did not attend the hearing on 25 November.
It seems that on 26 November 2015, the Tribunal dismissed the application pursuant to section 426A (1A)(b) of the Act. It was dismissed on the basis that the applicant had failed to appear at the scheduled hearing time. This is what has been referred to as the non-appearance decision and, indeed, a letter was sent to the postal address advising of the non-appearance decision. Also, he was advised he could apply to have the application reinstated within 14 days of receiving the non-appearance decision. Now, on 2 December 2015, the applicant, in fact, contacted the Tribunal by telephone. He said he had changed his address about one year earlier and he did not get the correspondence. He denied receiving the text messages. He confirmed that his telephone number was the same. He provided a new postal address, an address in Rosslea, Queensland 4812. It seems this is in or near Townsville. He also provided an email address. He said he would prefer to receive the correspondence by email.
On 2 December 2015, the Tribunal sent the applicant a copy of its letter dated 26 November 2015 and its enclosures. On 7 December 2015, the applicant, again, contacted the Tribunal by telephone. He informed the Tribunal that he had received the Tribunal’s letter dated 26 November 2015 by email. He claimed not to know that an application had even been lodged with the Tribunal on his behalf. On 10 December 2015, the applicant wrote to the Tribunal by email and requested that the application be reinstated. On 17 December 2015, the Tribunal reached a decision not to reinstate the application. This is what is known as the confirmation decision. It is contained in the court book at pages 200 to 208. The court book will be exhibit 1 in these reasons for judgment. The Tribunal set out its reasons, of course, for the confirmation decision. In particular in the court book, pages 205 to 208 is precisely where the reasons of the Tribunal for the confirmation decision are contained.
The application currently before the court, the amended application filed 21 November 2016, in fact seeks an extension of time for a review application to be filed in respect of the confirmation decision, which was dated 17 December 2015. In section 477 (1) of the Act, applicants have 35 days within which to file an application for judicial review.
So the first application to extend the time was filed 9 September 2016 and the amended application was filed 21 November 2016. So the Court now needs to consider the principles to be applied in deciding whether an extension of time should be granted pursuant to section 477 (2) of the Act. Those matters for consideration are as follows: firstly, the extent of the delay; secondly, any explanation that has been provided for the delay; thirdly, the prejudice that a respondent might suffer because of the delay; and finally, the merits of the proposed application.
As to the extent of the delay, it is noted in the submission provided on behalf of the respondent that the application itself was, in fact, filed well outside the 35 day time limit. The delay was significant. It amounts to 232 days. The next question is then what explanation has been provided? The applicant has filed an affidavit. That affidavit was filed on 21 November 2016 and today, he has appeared in person and with the assistance of a Bengali interpreter over the telephone has made some further submissions to the Court. Although I would have to say, the submissions made in person today did not take the matter very far at all. The applicant appeared to be restating one submission over and over again about how he had missed the time limit and so on.
The applicant did have a lawyer. There was a lawyer, of course, at the start. That is the Craddock Murray Neumann lawyer. And then there was another lawyer, HopgoodGanim, but they withdrew on 17 August 2017. But while HopgoodGanim were acting for the applicant, it looks like they assisted him in preparing an affidavit which was filed 21 November 2016. I have had regard to this affidavit.
Looking now at this question of any explanation for the delay, paragraphs 12 and 13 of the applicant’s affidavit make it clear that the Tribunal did email its decision to the applicant, but he did not check his email as he did not expect the Tribunal to contact him at the email address:-
“12. The Decision was provided to me in a letter dated 18 December 2016 which was sent to me by email.
13. I did not receive the Decision immediately as I did not check my email. I did not check my email frequently as I only received emails very rarely. I did not expect the AAT to contact me at my email address.”
So firstly, he said he did not check his emails. Well, one would have to say that such a submission really – it does lack credibility because I do note that it was, in fact, the applicant who had specifically requested the Tribunal contact him by email. Furthermore, he had made the reinstatement application by email using the email address. So frankly, if that is supposed to be an explanation for the delay, that is completely unsatisfactory.
Secondly, it is said by the applicant in paragraphs 14 and 15 of his affidavit:-
“14. I found out about the Decision because the Department called me and informed me that the AAT had dismissed my reinstatement application and that I had 35 days to review the decision. I understand that this period expired on 21 January 2016. The Department called me on or about two weeks before the 35 day period expired.
15. I asked the Department what I must do to review the Decision. The Department said that I could write a letter to the Minister requesting that he exercise his discretion and grant me a protection visa. The Department also told me that I could apply to the Federal Circuit Court to review the decision, but I did not understand what that meant.”
The applicant said he did not find out about the Tribunal’s decision until he was called by the first respondent’s Department who told him the outcome. That was about two weeks before the 35 day time limit expired. The Department told him he could seek judicial review. He said he did not understand what that meant.
He tried to get a lawyer, but was unsuccessful and he sought Ministerial intervention. In fact, what happened was that the applicant sought two Ministerial interventions. When he first found out about the 35 day limit, he had two more weeks in which he could have had time to file an application. But he seems to have pursued a different plan at first which was to seek Ministerial interventions and as I said, he tried twice. In various cases, including the case of Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211, it is noted that the judicial review application was what could be called Plan B. That is to say, the applicant’s Plan B. Plan A being the Ministerial intervention.
Jessup J in that case and many other judges in cases such as von Doussa J in Applicant A2 of 2002 v Minister for Immigration and Multicultural Indigenous Affairs [2003] FCA 576, Heerey J in VQAN v Minister for Immigration and Multicultural Indigenous Affairs [2003] FCA 1541, Jessup J again in MZYLJ v Minister for Immigration and Citizenship [2012] FCA 355 and a Full Court decision of Tracey, Perry and Charlesworth JJ in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478. All of those cases stand for the proposition that seeking a Ministerial intervention and pursuing a judicial review as a second string to the bow or a Plan B does not amount to a satisfactory explanation for the delay.
In any event, as noted in the submission for the respondent today, the Ministerial interventions were finalised 162 days before the applicant made this judicial review application. One would have to say that the other reasons given in the affidavit do not amount to a reasonable explanation for the delay, for instance, he tried to get a lawyer, but he was unsuccessful. He sought Ministerial intervention – that was unsuccessful. He got sick. He sought another Ministerial intervention. His mother died. He suffered financial stress. He was then told by a friend he could seek judicial review.
It seems to me, whether you look at each of those various matters one by one, that is, individually or cumulatively, in my view, they do not amount to a proper explanation for the delay. For instance, I note that in his affidavit, the applicant’s mother had, in fact, passed away about six months after the Tribunal’s decision. Now, there does not seem to be any explanation as to what happened after that point in time for further delay. The applicant’s alleged illness is not corroborated by any documentary evidence. One would expect, at the very most, it would only account for a small portion of the delay.
The applicant was aware of his review rights. He was aware within time of his review rights. The fact that he was not able to get legal assistance, the fact that he suffered stress and the question of a lack of finances, these together or even individually, do not amount to an acceptable explanation for the delay. As to the merits of the proposed application, the applicant has not pleaded any grounds. There are no substantive grounds for review pleaded. In my view, this is a sufficient reason to dismiss the application for an extension of time. But out of an abundance of caution, I think the Court should consider the Tribunal’s decision, even though there are no, as it were, pleaded grounds on the merits of the case.
It seems that there really only is one matter that ought to be considered. That is to say, one potential question for this Court on a judicial review if it had been pleaded, etcetera, and that is whether or not the Tribunal had erred in deciding to dismiss the application under section 426A (1A)(b) of the Act for non-appearance and whether the Tribunal had erred subsequently in confirming that decision. That is, in the making of the confirmation decision.
There are various matters to be considered. Firstly, was the applicant correctly notified of the hearing? Well, there was, of course, a hearing invitation that set out the day, time and place of the hearing as required under the Act. That hearing invitation was sent to the address that had been provided by the applicant on the application for review. It is referred to as the postal address. There is nothing to suggest that this applicant had notified the Tribunal about any change of address.
Section 441A of the Act sets out methods by which a hearing invitation can be sent, and that was what was done. The period of notice for the meeting exceeded the prescribed period. In this regard, I note section 425A (3) of the Act and regulation 4.21, subsection (4) of the Migration Regulations 1994 (Cth). The letter was sent by post on the date that it bears. This is an inference which the Court should draw noting that the copy available says it was sent by post on 13 October 2015.
I am satisfied that the hearing invitation complied with section 444 (1)(a) of the Act. I note the decision in Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424 per Jagot J. I am satisfied that the hearing invitation complied with the requirements of the legislation and I am satisfied that the Tribunal properly invited the applicant to appear before it. Therefore, the Tribunal had complied with section 425. Consequently, the Tribunal’s powers under section 426A of the Act were validly triggered. That, of course, meant that the Tribunal had the power to dismiss for a non-appearance. This Court should consider then whether or not the non-appearance decision was made reasonably. In my view, the Tribunal did act reasonably. I note in particular the Tribunal had sent the hearing invitation in accordance with the proper statutory requirements. The applicant is, therefore, taken to have been on notice of the scheduled hearing.
Furthermore, I note that the applicant was not actively seeking to engage in the review with the Tribunal. I know what was said by Mortimer J in Kaur v Minister for Immigration and Border Protection (2014) 141 ALD 619. When the applicant lodged his application for review to the Tribunal the applicant did not take any steps to submit material to the Tribunal. He had lodged that application, but didn’t take any steps to contact the Tribunal, keep in touch with the Tribunal, seek to submit material to the Tribunal, let the Tribunal know that he was moving address. He didn’t do any of those things. I do think it’s correct to say he did not actively seek to engage in the review. And of particular note in my conclusion that the Tribunal acted reasonably is the fact that the Tribunal went to the additional trouble of sending two text messages to the applicant on the mobile phone number that he had provided.
Now, the applicant confirmed that he still has that same mobile phone number, but he said he didn’t get the text messages, but he gives no explanation as to how this could be so, and we’re not talking about one text message. We’re talking about two. I agree with the submission made on behalf of the respondent that this evidence distinguishes the facts in this case from the facts as they arose in cases such as AZAFB v Minister for Immigration and Border Protection (2015) 68 AAR 171; [2015] FCA 1383 and CER15 v Minister for Immigration and Border Protection [2016] FCA 1057. Certainly, it distinguishes it from AZAFB v Minister for Immigration and Border Protection (supra).
The next matter for consideration is whether the confirmation decision was a decision that was made reasonably. It’s a matter of discretion for the Tribunal whether or not it would reinstate an application. I note section 426A (1C) of the Act in this regard. My view is that the Tribunal did act reasonably in coming to the view that it ought not reinstate the application. Now, the applicant did make a written submission setting out his explanation for his failure to attend the hearing, but he did not put forward any other material, no documents, etcetera, to corroborate any of the matters set out in that submission.
Furthermore, in that particular confirmation decision the Tribunal itself has had regard to and set out each element of the explanation provided by the applicant in relation to his non-appearance. The Tribunal sets out the steps the Tribunal took to allow the applicant to appear, and the Tribunal gave reasons for doubting the applicant’s account. The Tribunal gave reasons as to why it had decided not to exercise its discretion to reinstate. The confirmation decision, therefore, I conclude, did not lack an evident and intelligible justification. I note what was said by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
I have come to the conclusion that, even though there is no pleaded grounds here, having regard to what one can call the un-pleaded issues, I cannot see that the Tribunal erred in deciding to dismiss the application under section 426A (1A)(b) of the Act for non-appearance. Further, I cannot see that the Tribunal erred in confirming that decision by way of the so-called confirmation decision under section 426A (1C). Accordingly, the application for an extension of time should be refused with costs, and it will be apparent from what I’ve said as to precisely what the reasons are.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 27 April 2018
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