CRF21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 354
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CRF21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 354
File number(s): MLG 1980 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 12 May 2023 Catchwords: MIGRATION – application for an extension of time – decision of the Administrative Appeals Tribunal to confirm the dismissal of the applicant’s application for non-appearance – where delay of 1473 days is substantial - where grounds of application misunderstand the basis upon which the Tribunal determined the review application – where the proposed grounds of judicial review are without merit –not necessary in the interests of the administration of justice to extend time – application refused with costs Legislation: Migration Act 1958 (Cth) ss. 441A, 425, 425A, 426A, 426B, 477, 477A
Migration Regulations 1994 (Cth) reg 4.35D
Cases cited: CZD18 v Minister for Home Affairs & Anor [2019] FCA 1442
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127
DWK17 v Minister for Home Affairs [2019] FCA 66
Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submissions: 4 May 2023 Date of hearing: 4 May 2023 Place: Melbourne Applicant: In person Solicitor for the first respondent: Sparke Helmore ORDERS
MLG 1980 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CRF21
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondentorder made by:
JUDGE SYMONS
DATE OF ORDER:
12 May 2023
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 5 August 2021 be dismissed.
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 SYMONS:
INTRODUCTION
By an application filed on 5 August 2021 the applicant seeks judicial review of a decision of the second respondent (the Tribunal) made on 19 June 2017 (Confirmation Decision) in which it confirmed its earlier decision made on 2 June 2017 to dismiss an application by the applicant for a review of a decision of a delegate of the first respondent (the Minister) not to grant the applicant a Protection (Class XA) visa (review application). The review application was dismissed because of the applicant’s failure to appear at the hearing of that application (Dismissal Decision). The Tribunal made the Confirmation Decision because of a failure by the applicant to apply to reinstate the review application.
The task of seeking judicial review of the Confirmation Decision is complicated by the fact that the applicant filed his originating application over four years (1,473 days) after the time specified in s 477(1) of the Migration Act 1958 (Cth) (the Act) (being within 35 days of the date of the Tribunal’s decision) and must first satisfy the Court that it would be necessary in the interests of the administration of justice that he be granted an extension of time to do so.
The Minister opposes the granting of an extension of time on the grounds that the applicant has failed to provide a satisfactory explanation for what the Minister describes as his “inordinate” delay and because the applicant’s proposed substantive application misunderstands the basis upon which the Tribunal determined the review application and is therefore without merit.
BACKGROUND
The applicant is a citizen of Malaysia.
On 12 November 2015 the applicant arrived in Australia on an Electronic Travel Authority.
On 6 January 2016, the applicant lodged an application for a Protection (Class XA) visa (the visa). He identified his reason for departing Malaysia as “I was abused by my adoptive parents” and explained that if he was to return to Malaysia “my step parents can find me out and they will abused (sic) and harm me” (CB 30-32). The applicant did not further elaborate on these claims.
On 4 March 2016, the delegate refused to grant the visa to the applicant. The delegate found that should the applicant be removed back to Malaysia he could reasonably expect to obtain protection from the Malaysian authorities such that there would not be a real chance or real risk that he would suffer serious or significant harm (CB 37–48).
On 29 March 2016 the applicant made the review application. The applicant provided a residential address, mobile phone number (nominated mobile number) and an email address (nominated email address). He specified the residential address and the nominated email address as the means by which correspondence about the review application should be sent to him and ticked the box to indicate that he agreed to the Tribunal sending all correspondence by email (CB 49-55).
On 31 March 2016, the Tribunal sent an email to the nominated email address acknowledging receipt of the review application (CB 56-58).
On 1 May 2017, the Tribunal sent a letter to the nominated email address inviting the applicant to attend a hearing of the review application scheduled for 9.30 am on 2 June 2017. The letter contained the statement “[w]e have considered the material before us but we are unable to make a favourable decision on this information alone” and cautioned the applicant that if he did not attend the scheduled hearing, the Tribunal “may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us” (CB 59-65).
A case note in relation to the review application recorded that on 1 June 2017 and again on 26 June 2017, the Tribunal had sent the applicant an SMS hearing reminder to the nominated mobile number but that on both occasions, the delivery of the SMS hearing reminder had failed (CB 66).
On 2 June 2017, the Tribunal convened a hearing in the applicant’s review application. The Refugee Hearing Record created for the event was marked with the handwritten annotation “NO SHOW Declared at 12.00 pm 2 Jun 17” (CB 67-69).
On the same day, the Tribunal made the Dismissal Decision in which it dismissed the review application under s 426A(1A)(b) of the Act. The record of the Dismissal Decision, a copy of which was sent to the applicant via the nominated email address, stated (CB 72):
The review applicant was invited under s 425 of the Migration Act 1958 to appear before the Tribunal on 2 June 2017 at 09.30 am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing to the last advised mobile number. Both SMS notifications failed. Checks of the mobile number confirmed that they were sent to the correct last notified mobile number. No satisfactory reason for the non-appearance has been given.
On 19 June 2017, the Tribunal made the Confirmation Decision in which it confirmed the decision to dismiss the review application. The statement of decision and reasons for the Confirmation Decision, a copy of which was sent to the applicant using the nominated email address, stated (CB 78):
On 2 June 2017 the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s 426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
PROCEEDINGS IN THIS COURT
On 28 February 2023, a Registrar of the Court made procedural orders including that the applicant file and serve, at least 28 days before the hearing (being 6 April 2023) written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence upon which he seeks to rely. The applicant did not file any further material and therefore relies upon his application and affidavit filed on 10 August 2021. The affidavit did not address itself to any of the matters germane to an extension of time application but instead simply attached a copy of the Confirmation Decision.
At the hearing, the applicant engaged with the Court with the assistance of an interpreter in the Malay and English language. At the outset, I sought to clarify with the applicant what material he had received and/or had before him. The applicant told the Court that he had received a copy of the court book and the Minister’s submissions. He told the Court that he had read (or had read to him) the Minister’s submissions.
I explained to the applicant that as this was an application for an extension of time, he should address me on the reasons why such an extension should be granted. I told the applicant that in doing so, he might wish to provide an explanation as to why his application for judicial review had been filed over four years after the time specified in the Act. I told the applicant that he might also wish to tell the Court why the Confirmation Decision was wrong, bearing in mind that the decision did not involve the Tribunal rejecting his claims to be a refugee but rather it reflected the failure of the applicant to attend the Tribunal on the day of the scheduled hearing and to seek the reinstatement of the review application within 14 days of receipt of the Dismissal Decision (or at all). I explained to the applicant that although the Tribunal had the power under the Act to make a decision in these circumstances, the exercise of this power must still be reasonable. I inquired of the applicant as to whether there was anything he wished to say about the reasonableness of the Tribunal’s decision or whether there was anything unfair about the approach taken by the Tribunal.
EXTENSION OF TIME
It may be accepted that despite the lack of legislative prescription in relation to how the interests of the administration of justice might be satisfied for the purpose of s 477(2) of the Act, the factors which generally inform the exercise of the discretion to extend time include the following:
(a)the length of delay and whether there has been a reasonable and adequate explanation for it: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47] (citing SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48]);
(b)whether there is any prejudice to the Minister; and
(c)whether the applicant’s proposed grounds seeking judicial review justify the extension of time.
The question of substantive merit was addressed by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604. In particular, the Court considered the question of whether the exercise of discretion in s 477A(2) of the Act (couched in identical terms to s 477(2) of the Act) might involve more than an impressionistic assessment of the merits of a proposed ground of review. Although the decision contained two separate judgments, there was agreement that the power conferred by s 477A(2) is unfettered and allows the Court to look at a myriad of facts and circumstances and that, reflecting the breadth of the discretion, it is within the Federal Court (and this Court’s) jurisdiction to have regard to the merits of a proposed application in such manner as it considers appropriate.
In endorsing this approach, the High Court rejected the view previously promulgated by a Full Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 that “the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review”. As the majority explained, s 477(2) entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application.[1]
[1] See Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [19] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
The majority was also at pains to point out that 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. In this regard, the level of satisfaction for the Court to reach was described as “not low”.[2]
CONSIDERATION
[2] Ibid at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
Has the applicant provided an adequate explanation for his lengthy delay?
In his application filed on 5 August 2021 the applicant provided the following explanation for the delay:
1.I did not have enough money for the court appeal process at this time.
2.I also can not pay legal service for appeal to this court at that moment, so to make sure I in lawfull (sic) I get volunteered in union of workers to help me in this appeal process.
At the hearing, the applicant (who had earlier been sworn in) was invited to expand upon these explanations. The applicant told the Court that during the hearing he was on a farm in South Australia and did not have enough money to “come here”, which I understood to be a reference to the Tribunal. The applicant told the Court that he first found out about the Confirmation Decision approximately two months after it was made but that he did not at any time thereafter make efforts to obtain legal advice about it. The applicant told the Court that he had prepared his application document himself.
The applicant’s explanation for what, on any view, is a very substantial delay, is neither reasonable nor sufficient. While I accept the applicant’s evidence that he is an individual of limited financial means and that this would have affected his ability to obtain at least some form of legal assistance, the picture that emerges from the applicant’s sparse engagement with the Court is that over a period in excess of four years he took no steps to understand whether legal assistance might be available to him (including on a pro-bono or reduced fee basis) and/or to understand what process applied to the making of an application to this Court for judicial review.
There is ample authority to the effect that a lack of legal advice (including because of financial constraints) will not, without more, supply a sufficient explanation for delay (see, for example, DWK17 v Minister for Home Affairs [2019] FCA 66 at [10]-[12]).
The failure of the applicant to adequately explain the very lengthy delay in filing is a consideration that weighs heavily against the grant of an extension of time.
Do the applicant’s proposed grounds seeking judicial review justify the extension of time?
Before turning to the merits of the applicant’s proposed substantive application it is necessary to record some observations about the statutory scheme in which the Tribunal’s Dismissal Decision and Confirmation Decision operated.
Section 425 of the Act relevantly provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review…
In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 (SCAR), the Full Court (Gray, Cooper and Selway JJ) explained:
36.It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 167;
37.On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat the obligation…
A failure to comply with s 425 of the Act is a precondition to the valid exercise of the Tribunal’s jurisdiction and thereby such a failure involves jurisdictional error: SCAR at [38]; CZD18 v Minister for Home Affairs & Anor [2019] FCA 1442 at [27].
Section 426A of the Act sets out the process by which the Tribunal may deal with the non-appearance of an applicant at a hearing. The section relevantly provides:
Scope
(1)This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
…
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
…
Note 2:Under section 430B, the Tribunal must notify the applicant of a decision to dismiss the application.
(1B)If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
…
(1E)If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
Note:Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F)If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
Pursuant to s 426B of the Act, if the Tribunal dismisses an application under s 426A(1A)(b), it is required to notify an applicant of its decision:
Written statement of decision
(1)If the Tribunal makes a non-appearance decision, the Tribunal must make a written statement that:
(a) sets out the decision;
(b) sets out the reasons for the decision; and
…
(d) records the day and time the statement is made.
…
Notice to applicant
(5)The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under sub-section (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
It can be seen that the statutory scheme therefore permits the Tribunal, pursuant to s 426A(1A)(b), to dismiss an application for review if an applicant does not appear at a hearing without any further consideration of the application or information before the Tribunal. The statutory scheme further provides that the Tribunal must confirm the decision to dismiss the application if the applicant fails to apply for a reinstatement within 14 days after the receipt (or deemed receipt) of the written statement. The effect of such a decision is that the decision under review is taken to be affirmed: ss 426A(1E) and (1F) of the Act.
The legislature is taken to intend that a statutory power will be exercised reasonably by the decision-maker: Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332 at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J).
The applicant identified his proposed grounds of review as:
1.The Tribunal filed (sic) to consider many vital integer of my case
2.The Tribunal deprived me of procedural fairness
3.The Tribunal member failed relied on incorrect information and decided my case using facts form (sic) some other case
4.The Tribunal member failed to ask me questions about the types of harm relevant in my case
5.According in section 44 of the Administrative Appeal Tribunal Act 1975 there is a description and authorizing me to make such action appeal to Federal Circuit Court.
It is immediately clear that all but one ground (ground two) of these proposed grounds involve a misapprehension of the manner in which the Tribunal determined the review application which avowedly did not concern itself with an evaluation of the applicant’s protection claims. I invited the applicant to expand upon his ground of review that referred to a denial of procedural fairness. I also invited the applicant to tell the Court what he thought was wrong, generally, about the Confirmation Decision. The applicant told the Court that he did not have anything to say. I gave the applicant the same opportunity at the close of the Minister’s oral submissions. The applicant declined to say anything further.
Inevitably, where it is clear from the material that is before the Court, that the Tribunal – both in relation to the antecedent Dismissal Decision and the Confirmation Decision – applied the process prescribed under the Act, the applicant’s proposed substantive case is one properly characterised as without merit.
The Tribunal’s invitation to hearing dated 1 May 2017 complied with the relevant legislative requirements in that it: gave notice of the day, time and place of hearing (s 425A(1)); was transmitted by email to the last email address provided in connection with the review (being the nominated email address) (s 425A(2)); complied with the prescribed notice period of 14 days (s 425A(3) and regulation 4.35D(3) of the Migration Regulations 1994 (Cth)); and contained a statement to the effect of s 426A of the Act (s 425A(4)).
When the Tribunal made the Dismissal Decision it provided the applicant with a written statement setting out the reasons for its decision to dismiss the application which recorded the day and time the statement was made (s 426B(2)(a)-(c)) and, on 2 June 2017, the applicant was notified of the Dismissal Decision via the nominated email address and given a statement that described the effect of ss 426A(1B) to (1F). When the applicant did not make any contact with the Tribunal – either to explain his reasons for non-appearance at the hearing or to apply for reinstatement – the Tribunal was required after 14 days to confirm the Dismissal Decision pursuant to s 426A(1E) of the Act, which it did.
The applicant did not produce any evidence or make submissions directed at the procedural steps taken by the Tribunal. The applicant did not suggest that he had not received the invitation to the Tribunal hearing, but rather that his financial situation precluded his attendance. However, the applicant did not take steps to seek an adjournment and nor did he engage with the Tribunal after the Cancellation Decision was made.
This lack of engagement characterised the entire application and review process and therefore led to the unremarkable decision of the Tribunal not to deviate from the prescribed procedural course.
CONCLUSION
In circumstances where the delay is unexplained and substantial and where the proposed grounds of judicial review are without merit, the interests of justice require that the application for an extension of time be refused with an order that the applicant pay the first respondent’s costs in a fixed amount reflecting the Court Scale.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 12 May 2023
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