CQL19 v Minister for Immigration
[2019] FCCA 3460
•2 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQL19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3460 |
| Catchwords: PRACTICE & PROCEDURE – Application to extend time made pursuant to s.477(2) of the Migration Act 1958 (Cth) (the Act) within which to make a competent substantive application pursuant to s.476 of the Act – no satisfactory or reasonable explanation provided to explain the delay – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.189, 414, 415, 418, 425, 425A, 426A, 426B, 441A, 441C, 476, 477, 494C, div. 2 pt. 7 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252 |
| Applicant: | CQL19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1668 of 2019 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 29 October 2019 |
| Date of Last Submission: | 30 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2019 |
REPRESENTATION
| Applicant: | In person |
| Representative for the Respondents: | Ms K. Morris |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application to extend time made pursuant to s.477(2) of the Migration Act 1958 (Cth) on 3 July 2019 is refused.
The applicant pay the first respondent’s costs set in the amount of $7467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1668 of 2019
| CQL19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 3 July 2019 pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) seeking an extension of time within which to make a competent application pursuant to s.476 of the Act. The applicant seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 November 2018 which confirmed its decision made on 18 October 2018 to dismiss an application for review made to it. The subject of the review was a decision by the Minister’s delegate to refuse to grant the applicant a protection visa.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”), the affidavit of Ms Kathleen Anne Morris, solicitor, affirmed on 23 October 2019, with annexures, and the applicant’s affidavit affirmed on 30 June 2019 (and filed on 3 July 2019).
Background
The applicant is a citizen of the People’s Republic of China (“China”) (items 18 and 19 at CB 11). He arrived in Australia on 14 February 2015 (item 47 at CB 18). His application for a protection visa was received by the Minister’s Department on 27 February 2015 (CB 1 – CB 35). The applicant claimed that he was being targeted by local authorities because he sought adequate compensation for the demolition of his property by the authorities (CB 29 – CB 31).
The Delegate
By letter dated 22 January 2016, the applicant was invited to attend an interview with the delegate on 3 February 2016 (CB 45 – CB 47). The purpose of the interview was said to be to allow the applicant the opportunity to discuss his visa application, and his claims that he was a: “…person in respect of whom Australia has protection obligations” (CB 45.5). This letter informed the applicant that if he failed to attend the interview, his application would be decided on the information already provided to the Minister’s department (CB 46.3).
The applicant did not attend the interview. He gave no explanation for this (CB 52.8).
On 3 February 2016 the applicant was informed by letter that his visa application had been refused, as the delegate was not satisfied that the applicant met the relevant criteria (CB 48 – CB 50). Attached to the notification letter was the delegate’s decision record (CB 51 – CB 57).
The delegate found that because the applicant failed to attend the interview, the delegate did not have: “…the opportunity to verify the applicant’s claims and obtain substantiating detail from him…” (CB 55.2). Therefore, the delegate could not be satisfied that the applicant’s claimed fear of persecution in China was well-founded, or that there was a real risk the applicant would suffer significant harm, and thus, was unable to find favourably for the applicant.
The Tribunal
The applicant applied for review to the Tribunal on 19 February 2016 (CB 58 – CB 59). A letter dated 2 October 2018 was emailed to the applicant at the email address he provided in his review application (CB 68 and CB 59.3). The letter invited the applicant to attend a hearing before the Tribunal (CB 68 – CB 70). This letter advised the applicant that the Tribunal was: “…unable to make a favourable decision on this information alone” and that the purpose of the hearing was to give the applicant the opportunity to: “…present arguments relating to the issues in [his] case”.
Further, the letter put the applicant on notice that if he failed to attend the hearing, the Tribunal may dismiss the application without: “…any further consideration of the application or the information before” it (CB 70.3).
On the scheduled date of the hearing the applicant did not appear. There is no evidence that he sought an adjournment or otherwise indicated any difficulty in attending at the time, venue, or on the date scheduled for the hearing.
On 19 October 2018, the Tribunal emailed the applicant, attaching a notification of the Tribunal’s decision (dated 18 October 2018) to dismiss the application (CB 71 – CB 73). The letter advised the applicant that his matter had been dismissed due to his failure to attend the hearing. He was advised that he had until 2 November 2018 to apply for his matter to be reinstated.
Attached to the letter was the Tribunal’s statement of decision to dismiss the application (CB 73). This statement indicated that the matter had been dismissed due to the applicant’s failure to attend the hearing, and that the applicant had been on notice of the hearing by way of a letter and SMS sent to him. Further, that that letter had put the applicant on notice that his failure to attend the hearing could result in the Tribunal dismissing his application for non-attendance (CB 73).
The applicant was sent another letter by email on 6 November 2018 (CB 74 – CB 75) pursuant to s.441A(5)(b) of the Act. Attached to the letter was the Tribunal’s decision record (CB 76 – CB 77). As set out in s.441C(5) of the Act, the applicant was taken to have received the email at the end of the day on which it was transmitted, being 6 November 2018.
The decision record (which was attached to the email) stated that as the applicant had failed to apply for reinstatement of the matter, the Tribunal confirmed the decision to dismiss the application to the Tribunal (CB 77).
I note that on 3 March 2016 (after he had applied for review to the Tribunal), the applicant sent an email to the Minister’s Department at the address: “OPNSW Admin”, attaching a completed change of address form (CB 63 – CB 65). This form included a new postal address for correspondence, and indicated that the applicant did not want to receive electronic communication, such as email.
There is no evidence before the Court to indicate that this change of address form was given to the Tribunal by the applicant. Further, by letter dated 19 February 2016 acknowledging receipt of the applicant’s application for review, the Tribunal put the applicant on notice that the Tribunal could be contacted at “[email protected]” (CB 61.9). (See further below).
Extension of Time – s.477(2) of the Act
The Tribunal’s decision affirming the delegate’s decision to dismiss the application for review was made on 5 November 2018. Section 477(1) of the Act provides that an application made pursuant to s.476 of the Act must be made to this Court within 35 days of the date of the making of the Tribunal’s decision. In the current case, the application was made 205 days after the expiry of the 35 day period (being 10 December 2018). On this basis, the substantive application pursuant to s.476 of the Act is not competent.
Section 477(2) of the Act provides that, upon written application by an applicant, the Court may extend the time for the making of the substantive application, if it considers that it is in the interests of the administration of justice to do so.
The factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158, MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203, see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [18]–[23]).
In the current case, the particular factors arising from the circumstances presented in considering the exercise of the discretion, appear to be the length of the delay, whether any satisfactory explanation or reasonable excuse has been given for the delay, whether the Minister would suffer any prejudice if time were extended, and primarily, whether the proposed substantive application for judicial review is sufficiently, or reasonably, arguable, or has reasonable prospects of success, or has such merit to justify the extension of time to allow the matter to proceed to a final hearing in the interests of the administration of justice. In deciding whether to grant an application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.
The applicant’s grounds for the extension of time are as follows:
“1. I did not receive the decision from AAT until I went to AAT in June, 2019.
2. Tribunal did not handle my case properly.”
[Errors in the Original.]
Before the Court
On 25 July 2019, a Registrar of the Court made orders for the conduct of this case. These included orders that the applicant file and serve any evidence by way of affidavit and written submissions. At the date of the hearing of the extension of time, nothing further had been filed by the applicant.
At the hearing of the application to extend time the applicant appeared in person. He was assisted by an interpreter in the Mandarin language.
The applicant’s submission before the Court was essentially that he had nothing to say. He wanted the extension of time so as to be able to remain in Australia.
It appeared that the applicant laboured under the misapprehension that the application for the extension of time was an application to extend the time by which he would lawfully remain in Australia.
As is set out above, the extension of time for which the applicant applied (albeit without proper understanding) is to extend the time by which he can make a competent application to the Court pursuant to s.476 of the Act. It is trite to say the Court has no power to grant the applicant a visa by which to lawfully extend his stay in Australia.
Despite opportunity to do so, the applicant has not provided any evidence by way of affidavit to support, or to explain, the grounds of the application to extend time. The applicant’s submissions before the Court were of no assistance to him.
In any event, the applicant (or someone on his behalf) raised two matters in his grounds in relation to the extension of time. One, he did not receive the Tribunal’s decision until he went to the Tribunal’s office in June 2019 and received the decision at that time. Two, the Tribunal did not handle his case properly.
Apart from the lack of evidence to support these assertions, the evidence that is before the Court reveals that the Tribunal sent both the dismissal decision, and the confirmation decision, to the email address that the applicant had provided in his application for review to the Tribunal (see CB 59.3 [email address not reproduced here so as not to identify the applicant in the proceedings] (“the relevant email address”) and see CB 72.3 and CB 75.3).
As set out above, on 3 March 2016 the applicant sent, by email, the change of address notification to the Minister’s department (CB 63 – CB 65). The document notified the Minister’s department of his change of postal address, and that he did not want communication to be sent to him electronically (item 9 at CB 64).
The question that arises, therefore, is whether the Tribunal erred in sending the invitation to the hearing, and the notification of its subsequent decisions, to the email address provided by the applicant. If there is such error, then this may provide the applicant with a reasonable basis to satisfactorily explain why he did not receive the Tribunal’s decision records soon after the making of the decisions in question (the decision to dismiss the application and the decision confirming that decision).
This goes, therefore, to whether the applicant has provided a satisfactory explanation for the delay in making his application to the Court. It is to be noted that the Tribunal decisions were made on 18 October 2018 and 5 November 2018 respectively. The application to the Court was made on 3 July 2019, almost seven months beyond the time within which a competent application could be made. This is a period of considerable delay. A number of points emerge for consideration.
Consideration
One, on the evidence, the applicant’s communication and notification on 3 March 2016 was sent to the Minister’s department, and not the Tribunal. The address in the applicant’s email (“OPNSW Admin” at CB 63) was the address provided to the applicant on 3 March 2015 by the Minister’s department for the purposes of the application for the visa (CB 36 – CB 41).
The evidence reveals that the applicant did not send this document, or any other similar document, or similar notification, to the Tribunal. The evidence also shows that this document was not contained in the applicant’s Tribunal file.
Two, the temporal focus is important here. The delegate made the decision to refuse the visa on 3 February 2016. The applicant was notified by registered post (CB 48). The applicant must have received the notification because he applied for review to the Tribunal on 19 February 2016 (CB 58 – CB 59). He provided the relevant email address for correspondence on that date (CB 59).
On 19 February 2016 the Tribunal sent an acknowledgement of the application for review to the applicant to the relevant email address, that is, the address he had provided to the Tribunal for that purpose (CB 60 – CB 62).
That acknowledgement, amongst other things stated (at CB 61.6):
“It is important that you:
● tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address)…”
The Tribunal’s letter made clear the various contact addresses for the Tribunal, including its relevant email address. This address was different to the departmental address. When the applicant sent the change of address notification to the Minister’s department, he would have been on notice of the different electronic email addresses for the department, and the Tribunal.
Three, there is no evidence that the applicant received any assistance in making his application for the visa, or the application for the review. In fact, in his application for the visa, the applicant declared that he had not received any assistance in the completion of the application form, which was in English (item 6 at CB 8).
What remains, therefore, and noting that there is absolutely no evidence from the applicant now to contradict what is set out above, is that the applicant would have reasonably been aware that the two different organisations had different email (and other postal) addresses. For whatever reason, the applicant elected to send the notification of the change of address to the Minister’s department, and not the Tribunal.
Four, while the applicant’s application for the protection visa had been refused by the delegate in the Minister’s department, that did not mean that his dealings with the department had ceased. The applicant came to Australia on 14 February 2015 on a visitor’s visa, which ceased to have effect on 28 February 2015 (item 47 at CB 18 and item 63 at CB 20). He lodged his application for the protection visa on 26 February 2015, and, as set out above, did so, on his own declaration in English, without assistance (item 6 at CB 8 and CB 51.7 – CB 51.9).
There is no evidence to indicate that the applicant was ever at the relevant times in migration detention, or that he was granted any extension on his visitor visa. Given the provisions of s.189 of the Act, it is reasonable, in the circumstances of his having applied for protection, to infer that the applicant remained at liberty during the time of the processing of the application for the visa, and the time of the review by the Tribunal, because of the grant of a bridging visa, or visas, by the Minister’s department.
In all, the applicant made the applications for the visa, and then review, without assistance. He would have been on notice that the department and the Tribunal had different addresses. He maintained some ongoing relationship with the Minister’s department. In these circumstances, it is reasonable to infer that the notification to the Minister’s department of the change of address (and not the Tribunal) was an election made by the applicant for reasons not now, or otherwise, explained.
Five, in any event, even if it could be said that the applicant in some way misunderstood the distinction between the department and the Tribunal (there is no evidence from him now to that effect), the fact remains that the Tribunal was not notified by the applicant of any change in the address to which correspondence from the Tribunal should be sent in relation to the review.
There is no evidence from the applicant now, nor did he make any submissions, to say that he also notified the Tribunal of the change of address. In short, there is nothing from the applicant now to indicate that the notification of the change of address to the Minister’s department was otherwise meant for the Tribunal, or was relevant to the review.
Six, notwithstanding his notification of the change of address to the Minister’s department on 3 March 2016, the applicant continued to receive correspondence from the Tribunal directed to the relevant email address he had provided to the Tribunal. Importantly, he continued to use that email address to respond to the Tribunal.
The evidence of Ms Morris before the Court reveals that the applicant sent an email from the relevant email address to the Tribunal on 3 February 2017, that is, 11 months after the notification to the Minister’s department, requesting a letter from the Tribunal so as to enable him to obtain a new Medicare card (see [8](a) of the affidavit of Ms Morris and annexure “KM 1”).
The Tribunal responded by email sent to the relevant email address on the same day (see [8](b) of the affidavit of Ms Morris and annexure “KM 2”).
The applicant sent an email to the Tribunal from the relevant email address on 23 June 2017 (more than 15 months after the notification to the Minister’s department), again concerning his Medicare card (see [8](c) of the affidavit of Ms Morris and annexure “KM 3”).
The Tribunal responded on 26 June 2017 by email sent to the relevant email address ([8](d) of the affidavit of Ms Morris and annexure “KM 4”).
There is no evidence from the applicant now to say, nor is there even any such indication otherwise, that he did not receive the responses from the Tribunal at that email address.
In any event, for current purposes the applicant’s own conduct in using the relevant email address to communicate with the Tribunal, after notifying the Minister’s department of a different address, supports the proposition that the applicant intended the notification of the change of address to apply only to the correspondence with, and from, the Minister’s department, and not the Tribunal.
Seven, during the hearing I raised with the Minister’s solicitor whether s.418(3) of the Act may be relevant to this consideration. That subsection, at the relevant time, was in the following terms:
“(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.”
The questions that arose were whether there was any breach of s.418(3) of the Act by the Secretary to the Minister’s department in the circumstances of this case, and if so, whether this revealed jurisdictional error in the Tribunal’s decision. The Minister was given the opportunity to make written submissions on these questions.
Sub-section 418(3) of the Act requires the Secretary to the Minister’s department to consider the provision of relevant documents to the Tribunal once the Secretary has been notified that an applicant has made an application for review.
That obligation is not limited upon receipt of such notification by the Secretary but continues until the completion of the review (SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38 at [57]-[58] per Bennett and McKerracher JJ, SZUSR v Minister for Immigration & Anor [2015] FCCA 3105, CQZ15 v Minister for Immigration & Anor [2019] FCCA 2239 at [51]).
On the evidence before the Court, the Secretary did not give the applicant’s notification to the department (of the change of address) to the Tribunal. Nor is there any evidence as to whether the Secretary considered doing so or not.
What remains, therefore, is that the applicant gave the notification to the Minister’s department. This document was not given to the Tribunal. The question, therefore, is whether it should have been given.
I agree with the Minister that the statutory obligation on the Secretary is to provide documents that the Secretary considers to be relevant to the Tribunal’s review. Not all documents relating to the applicant on the Minister’s departmental file would be relevant to the review. For example, whether the applicant had been granted a bridging visa with work rights.
Therefore, I agree with the Minister that the Secretary’s relevant consideration is limited to documents “relevant to the review”. The question that arises can only be answered when regard is had to the Tribunal’s statutory function in relation to the review.
The Tribunal’s obligation in this regard arises from Division 2 of Part 7 of the Act, and in particular, s.414 of the Act, which compels the Tribunal to conduct a review of a reviewable decision, and s.415 of the Act, which sets out the powers that may be exercised by the Tribunal in the review of a reviewable decision, when an applicant has applied to the Tribunal for review of a delegate’s decision.
I agree with the Minister that such matters as the applications for bridging visas, or change of address forms directed to the Minister’s department, and not the Tribunal, after an application for review has been made to the Tribunal, cannot readily be seen to fall within what may be relevant to the Tribunal’s statutory task. That is, a document “relevant to the review”.
I agree with the Minister that direction in this regard has been provided, for current purposes, by the Federal Court:
“…ordinarily, the Secretary could only consider what documents would be relevant to the review by reference to the claims which were dealt with by the delegate…”. (Applicant S56 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 444 at [36]).
In short, what is relevant to the review is directed to documents that may inform the Tribunal’s decision in the exercise of the powers conferred on it by s.415 of the Act.
In the current case, as set out above, the applicant provided his relevant addresses for receiving correspondence from the Tribunal (including the relevant email address) directly to the Tribunal. He did so when he made his application for review.
I agree with the Minister that in all the circumstances set out above, the applicant’s notification to the Minister’s department was not “relevant to the review”, and therefore no breach of s.418(3) arises.
That is sufficient to dispose of this question in this case. However, as the Minister also submits, even if some breach of s.418(3) of the Act had occurred (which in the current case, did not), then any failure to comply with s.418(3) of the Act does not result in jurisdictional error on the part of the Tribunal (see WAGPv Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103 and BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61).
Ultimately, on the evidence before the Court, the applicant’s conduct in his communication with the Tribunal, after having given the notice to the Minister’s department, was that he was able, and content, to make and receive communications from the Tribunal, by use of the relevant email address.
The relevance of the matter of the email from the Tribunal is important in the context as to whether the applicant had notice of the hearing before the Tribunal which he did not attend, and which led to the dismissal of his application for non-attendance, and the subsequent confirmation two weeks later. Notification of the invitation to the hearing, the decision to dismiss, and the confirmation, were all directed to the relevant email address.
In this regard, and as set out above, the applicant and the Tribunal otherwise communicated through the relevant email address.
Further, on the evidence before the Court, the applicant was also sent two “reminders” of the hearing (5 and 1 business days) before the hearing by SMS. The delivery of the second message “failed”. The transmission of the first message did not ([1] at CB 73).
It must also be remembered that none of the applicant’s grounds of the application to the Court asserted error on the part of the Tribunal in relation to any failure to notify the applicant of the hearing invitation, the decision to dismiss, and the confirmation of that decision. Nor, despite opportunity to do so, is there any evidence from the applicant to indicate that this was the case.
On the evidence before the Court, the Tribunal sent the acknowledgement of the application for review (CB 60 – CB 62), the correspondence relating to hearing availability (CB 66 – CB 67), the invitation to hearing (CB 68 – CB 70), the notification of the dismissal of the application for review for non-appearance at the hearing (CB 71 – CB 73), and the confirmation of this decision (CB 74 – CB 77), to the last email address provided by the applicant to the Tribunal for the purpose of receiving correspondence from the Tribunal, in relation to the review.
On the evidence, the Tribunal complied with the relevant requirements set out at s.441A(5)(b) of the Act. The applicant is taken to have received all these documents at the end of each of the days on which they were transmitted (s.441C(5)).
Ground one of the application to extend time is not made out. There is no evidence from the applicant now, despite opportunity to provide such evidence, that he did not receive notification of the dismissal, and confirmation, decisions, until he went to the Tribunal’s office some 205 days after the Tribunal made its decision.
On the evidence, the relevant notifications were sent to the last email address provided by the applicant to the Tribunal, for the purposes of receiving correspondence. On the evidence before the Court, the Tribunal complied with all of the relevant statutory and regulatory requirements in the sending of the two letters of the notification of its decisions. By operation of s.494C(5) the applicant is taken to have received the letters of notification at the end of the days on which they were transmitted.
The second ground of the application to extend time is also not made out. Before the Court, the applicant did not explain what he meant by the assertion that the Tribunal did not handle his case “properly”. Given what is set out elsewhere in this judgment, there is no error in the Tribunal having sent the invitation to the hearing to the last email address provided to it for the purpose of receiving correspondence, nor is there error in subsequent notifications to the applicant by the Tribunal.
The length of the delay in the current case is considerable. In the circumstances, no satisfactory or reasonable explanation has been produced. That in itself may be sufficient to refuse the extension of time (SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8], SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6]).
However, even in circumstances where the Minister does not claim any prejudice if time were to be extended, the grounds of the proposed substantive application are so lacking in merit that they do not weigh in support of the application to extend time.
The proposed grounds are as follows:
“1. Tribunal did not handle my claims properly.
Tribunal did not give its reasons in writing for dismissing my review application.
2. Tribunal did not consider whether immigration officer disclose relevant information.
3. Tribunal did not consider harm I will suffer if I return to China.
Thus, there exists jurisdictional error in my case.”
[Errors in the Original.]
It is clear that the applicant misunderstands the relevant statutory scheme which, in the circumstances, led to his lack of success before the Tribunal.
As set out above, the applicant was invited to a hearing pursuant to s.425 of the Act. That invitation complied with all the relevant statutory and regulatory requirements. The applicant did not attend at the hearing at the scheduled time, date, and place.
In these circumstances, the Tribunal had discretion pursuant to s.426A(1A) of the Act to either proceed to make a decision on the review without taking any further action to allow the applicant to appear before it (s.426A(1A)(a)), or dismiss the application without any further consideration of the application or information before the Tribunal (s.426A(1A)(b)).
On the evidence before the Court, the Tribunal’s exercise of discretion to proceed pursuant to s.426A(1A)(b) was reasonable in light of the reasons given by the Tribunal, and in the circumstances before it (see [1]–[3] at CB 73).
Ground one of the proposed substantive application asserts the Tribunal did not handle the applicant’s claims properly, and that the Tribunal did not give reasons for dismissing his application.
The Tribunal was obliged pursuant to s.425 of the Act to invite the applicant to a hearing so that he could give his evidence and arguments in relation to the issues in the review.
As set out above, the Tribunal did invite the applicant to a hearing. The invitation put the applicant on notice that the Tribunal was unable to make a favourable decision on what had been put before it.
The invitation complied with all of the relevant statutory and regulatory requirements. The Tribunal utilised s.441A(5)(b) to send the invitation by email. This is one of the methods for this purpose permitted by the statute.
As set out above, the invitation was sent on 2 October 2018 (CB 68 – CB 70). The scheduled hearing date was 18 October 2018. The applicant was taken to have received the invitation at the end of 2 October 2018 (as per s.441C(5)).
The period of 16 days between notification and the scheduled hearing day exceeded the relevant notice time prescribed for such an invitation (14 days: s.425A(3) and reg.4.35D(3)(b)(i) of the Migration Regulations 1994 (Cth)).
The letter of invitation complied with all other statutory requirements set out in s.425A(1). That is, the applicant was given notice of the time, date, and place of the hearing.
The letter of invitation put the applicant on notice, consistent with s.425A(4) of the Act, of the possible consequences of not attending at the hearing, or otherwise responding to the invitation. This included that the Tribunal may proceed to dismiss the application for non-attendance, and that in those circumstances, the applicant could reinstate his application on his own initiative.
When the applicant did not attend at the hearing, the Tribunal proceeded to dismiss the application pursuant to s.426A(1A)(b) of the Act without taking any further steps to enable the applicant to appear.
The exercise of the Tribunal’s discretion in this regard was reasonable in the circumstances, as set out above, and as explained by the Tribunal ([2] at CB 73):
“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 an SMS reminder was also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.”
Contrary to the assertion in proposed ground one, the Tribunal did give reasons in writing for dismissing the application (s.426B(2)).
It may be that what the applicant really seeks to complain about in proposed ground one is that the Tribunal did not engage with his claims to fear harm, which were the bases for his protection visa application.
This misunderstands the relevant statutory regime, as set out above, and the exercise of the Tribunal’s discretion. The Tribunal did not proceed to consider the applicant’s claims and then affirm the delegate’s decision. Rather, the Tribunal decided, for reasons given, to dismiss for non-attendance. This was within the statutory power conferred on the Tribunal and was reasonably open to the Tribunal on what was before it, and for the reasons it gave.
The Tribunal also complied with the statutory requirement to notify the applicant of the decision in writing within 14 days of the date of the decision to dismiss (s.426B(5)). The Tribunal’s notification letter complied with the requirements of s.426A(1B)-(1F) of the Act (CB 69 – CB 70 and CB 72). That is, that if the applicant did not seek reinstatement of the application within 14 days of the receipt of the notification, the Tribunal was compelled to confirm its decision. That is, the Tribunal had no discretion in this regard.
As set out above, the applicant did not seek reinstatement. There is no legal error in the Tribunal complying with what is, after all, a statutory requirement. In all, proposed ground one lacks merit.
Proposed ground two asserts error because the Tribunal did not consider whether the immigration officer disclosed relevant information. No particulars whatsoever have been provided. Nor did the applicant explain this before the Court, despite opportunity to do so.
In the circumstances, the applicant’s proposed ground two lacks merit. Apart from a lack of intelligible explanation, it also misunderstands that the Tribunal was not required, in the circumstances, to consider what had happened before the delegate, if this is what is meant by this proposed ground. The Tribunal dismissed the application because of the applicant’s non-attendance at the hearing before it.
Proposed ground three similarly misunderstands what has relevantly occurred in this case. The Tribunal was not obliged, in the circumstances, to consider whether the applicant would suffer harm on return to China. Once the Tribunal properly exercised its discretion to proceed on the basis of the applicant’s non-attendance at the hearing, the Tribunal had exhausted its statutory obligations, and the extent of its conduct of the review, other than for the consideration of any possible reinstatement of the matter, if the applicant had sought it. Proposed ground three also lacks merit.
Conclusion
In all, therefore, the applicant has not provided a satisfactory or reasonable explanation for the significant delay in making his application to the Court. Importantly, the grounds of the proposed substantive application lack merit, such as to argue for the extension of time to enable the making of a competent substantive application to the Court. It is appropriate, therefore, to refuse the extension of time. I will make that order.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 2 December 2019
14
3