CTQ23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1066
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CTQ23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1066
File number(s): ADG 372 of 2023 Judgment of: JUDGE LUCEV Date of judgment: 25 October 2024 Catchwords: MIGRATION – Proposed application for review of Registrar’s decision dismissing application for judicial review of migration decision for non-appearance.
PRACTICE AND PROCEDURE – Application for extension of time in which to file application for review of Registrar’s decision dismissing application for non-appearance – nature of test for extension of time on application for review of Registrar’s decision – on any terms that the Court thinks fit – whether necessary to consider merits of underlying application – factors for consideration – length of delay – effect of very limited period in which to make application to extend time – reason for delay – prejudice to the respondent or third parties –merits of underlying application – whether arguable jurisdictional error
MIGRATION – Merits of underlying application – where no appearance before the Administrative Appeals Tribunal – application to Administrative Appeals Tribunal dismissed for non-appearance – where no application to Administrative Appeals Tribunal to review dismissal for non-appearance – whether applicant properly notified of Administrative Appeals Tribunal hearing – whether Administrative Appeals tribunal decision to dismiss legally unreasonable - where email notification went to spam folder – whether Administrative Appeals Tribunal ought to have telephoned the applicant or sent a letter by post when applicant failed to respond to email notification of hearing – whether arguable material jurisdictional error – whether any reasonable prospect of success – summary dismissal
Legislation: Federal Circuit and Family Court Act 2021 (Cth) ss 143, 224, 256,
Federal Court of Australia Act 1976 (Cth) s 31A
Migration Act 1958 (Cth) Div 4, Pt 7, ss 425, 425A, 426A, 426B, 441A, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 21.2, rr 13.13, 21.02, 21.04
Migration Regulations1994 (Cth) reg 4.35D
Cases cited: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
ATI21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 3
Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623
AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291
Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166; (2021) 388 ALR 414
BHP22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1137
BHQ20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 298
BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307
BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFam2G 902
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 86; (1996) 139 ALR 1
BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83
CAF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1527
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
CJZ16 v Minister for Immigration and Border Protection [2019] FCCA 29
COW17 v Minister for Immigration and Border Protection [2020] FCCA 2873
CTQ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 232
CTT23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 274
DBW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 82
Dhaliwal v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 320
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393; (2014) 141 ALD 619
Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401; (2009) 259 ALR 319
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
Satty v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 982
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 479
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tamber v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 1120
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573
Vavilala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 768
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of last submission/s: 30 May 2024 Date of hearing: 30 May 2024 Place: Perth (heard in Adelaide) Applicant: In person with the assistance of an interpreter Counsel for the First Respondent: Mr J O’Connell Solicitor for the Respondents: HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 372 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CTQ23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.Leave to extend time under r 21.02(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for the making of an application for review of a decision of a Registrar in CTQ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 232 be refused.
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 LUCEV
INTRODUCTION
The applicant, CTQ23, seeks to apply under s 256(1) of the Federal Circuit and Family Court Act 2021 (Cth) (“FCFCOA Act”) and Div 21.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”), for review (“Proposed Review Application”) of a Registrar's decision dated 13 March 2024 in CTQ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 232 (“CTQ23 - Registrar’s Decision”).
In CTQ23 - Registrar’s Decision a Registrar of this Court summarily dismissed CTQ23’s application for judicial review (“Judicial Review Application”) of a decision dated 13 November 2023 of the Administrative Appeals Tribunal.
Pursuant to r 21.02(1) of the GFL Rules an application for review had to be made within seven days of the making of CTQ23 - Registrar’s Decision. As such CTQ23 was required to file the Proposed Review Application by 20 March 2024, but did not file until 8 April 2024, and did not, in the Proposed Review Application or otherwise, apply for an extension of time in which to apply for review of CTQ23 - Registrar’s Decision. The Court has nevertheless considered the matter as if an application for an extension of time had been made, and explained to CTQ23 at hearing what factors had to be addressed in relation to an extension of time application: Transcript, pp 3-5.
Rule 21.02(2) of the GFL Rules provides that the Court can extend the prescribed seven-day period for applying on any terms that the Court thinks fits or with the consent of the parties. The first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”):
(a)opposes the Court extending the seven-day time period under r 21.02(2)(a) of the GFL Rules; and
(b)alternatively, if an extension of time is granted, submits that CTQ23’s application for review of CTQ23 - Registrar’s Decision should be dismissed.
RELEVANT FACTUAL BACKGROUND
The relevant factual background to this matter is as follows:
(a)on 18 July 2017 CTQ23 applied for the Protection Visa: Court Book (“CB”) 1-38;
(b)on 12 January 2018 the Delegate’s Decision was to refuse to grant CTQ23 the Protection Visa: CB 40;
(c)on 7 February 2018 CTQ23 applied to the Tribunal (“Tribunal Application”) for review of the Delegate’s Decision. CTQ23 provided an email address (“Nominated Email Address”) for the purpose of receiving correspondence and a mobile telephone number (“Mobile Number”): CB 51-52;
(d)on 15 November 2021, 27 May 2022, and 7 May 2023, CTQ23 wrote to the Tribunal from the Nominated Email Address seeking Medicare letters. The Tribunal responded on each occasion to the Nominated Email Address: CB 59-61;
(e)on 15 June 2023 the Tribunal wrote to CTQ23 at the Nominated Email Address seeking further information from CTQ23 within 7 days (“Further Information Request”): CB 62. CTQ23 did not respond to the Further Information Request;
(f)on 4 October 2023 the Tribunal wrote to CTQ23 at the Nominated Email Address, inviting CTQ23 to appear before the Tribunal at an in-person hearing of the Tribunal Application on 25 October 2023 (“Tribunal Hearing Invitation” and “Tribunal Hearing” respectively): CB 64;
(g)on 25 October 2023:
(i)CTQ23 failed to appear at the Tribunal Hearing: CB 72; and
(ii)the Tribunal dismissed the Tribunal Application for non-appearance (“Dismissal Decision”) pursuant to s 426A(1A)(b) of the Migration Act 1958 Act (Cth) (“Migration Act”), noting that CTQ23 was properly notified of the Tribunal Hearing and that CTQ23 had not provided any satisfactory reason for his non-appearance: CB 78-79;
(h)notification of the Dismissal Decision was sent to the Nominated Email Address on 26 October 2023: CB 75-76;
(i)on 13 November 2023 the Tribunal confirmed the Dismissal Decision (“Confirmation Decision”) pursuant to s 426A(1E) of the Migration Act, noting that CTQ23 did not apply for reinstatement within 14 days of the Dismissal Decision and that the Tribunal was therefore required to confirm the Dismissal Decision: CB 84-86;
(j)notification of the Confirmation Decision was sent to the Nominated Email Address on 14 November 2023: CB 82-83;
(k)on 21 November 2023 CTQ23 filed the Judicial Review Application seeking judicial review of the Tribunal Decision in this Court; and
(l)on 13 March 2024 a Registrar of this Court summarily dismissed the Judicial Review Application pursuant to r 13.13(a) of the GFL Rules: CTQ23 - Registrar’s Decision at [21] per Cummings JR.
JUDICIAL REVIEW APPLICATION
In the Judicial Review Application the single ground of review is as follows (transcribed without amendment):
1.I had applied for Tribunal to 07/02/2018 for merits review of my case. I was deleting my spam folder and checked the emails form tribunal on 18/11/2023. It stated that my application is being refused. It further stated that email was sent to me two times for hearing and a text message for same. The emails from tribunal went into spam and I didn't have it in my inbox so I was not aware of the hearing. When tribunal states it send me email for hearing and I was not responding then they should have have called me. Its mentioned they have sent me text message but I have not received any. I should have been contacted over phone so I know its my hearing or should have sent post if email was responded. The only reason there was no response as it went into spam folder.
Tribunal should have contacted me over phone call or by post when they didn't get my response on email. There has to a reason that person is not responding that is he is not getting your emails. Tribunal by not contacting me over phone call or trying to contact me over letter on my address made a "Jurisdictional error" in the judgment. It didn’t gave me chance to present my case and deprived me of justice. Everyone wants to present their case and have justice, Tribunal should have contacted me on phone call so I could have presented my case. If I didn't check spam folder I might have been unlawful. This is very serious applicant should be contacted by phone so We know if email doesnot come through or goes in spam.
PROPOSED REVIEW APPLICATION
Ground of Proposed Review Application
The first paragraph of the single ground of the Proposed Review Application is as follows (transcribed without amendment and emphasis in original):
1.I had applied to Federal circuit on the grounds that AAT has Jurisdictional error in its decision. I had given explained my case to them. Tribunal has been informing Applicants in a wrong way and this is destroying life of hundreds of migrants including myself.
The second and third paragraphs of the Proposed Review Application are identical to the single proposed ground of review in the Judicial Review Application set out at [6] above.
Evidence
CTQ23 swore two affidavits in these proceedings: the first on 21 November 2023 (“November 2023 Affidavit”) and the second on 8 April 2024 (“April 2024 Affidavit”).
The substantive content of the November 2023 and April 2024 Affidavits is identical to the single ground of the Judicial Review Application: see [6] above.
The substantive content of the April 2024 Affidavit is identical to the single ground of the Proposed Review Application: see [7] above.
Without objection by the Minister the November 2023 Affidavit and the April 2024 Affidavit were read on the basis that insofar as they contained otherwise objectionable material which was submission, that material would be considered by the Court as submissions made by CTQ23. The Minister made no application to cross-examine CTQ23 in relation to the November 2023 or April 2024 Affidavits.
At hearing the CB was marked as Exhibit 1.
Legislation
The legislation relevant to the Proposed Review Application and an extension of time in which to make the Proposed Review Application is as follows:
(a)section 256(1) of the FCFCOA Act relevantly provides as follows:
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
(b)rule 21.02 of the GFL Rules relevantly provides as follows:
(1)For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) may be extended in a proceeding:
(a)by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b) with the consent of the parties to the proceeding.
(c)rule 21.04 of the GFL Rules relevantly provides that the Court’s review of an exercise of power by a Registrar must proceed by way of a hearing de novo.
General principles that apply to reviews of Registrar decisions
The overriding legal principles that apply to reviews of Registrar decisions are concerned with ensuring that hearings are conducted de novo – that is, that they be conducted afresh and without regard to finding fault in the decision-making process of the Registrar. The validity of the delegation of judicial power to Registrars is dependent on these principles and the right of the parties to seek review of the authority delegated to the Registrar. The principles were outlined by a Full Court of the Federal Court in Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166; (2021) 388 ALR 414 at [2]-[4] per Allsop CJ, Markovic and Colvin JJ:
[2]It is now an accepted incident of judicial power that it may be exercised in this way, namely by an order being made pursuant to a delegation, but only if the order may be reversed or otherwise corrected by a judge on review. In such cases, however, it is important to recognise that the review (or by de novo “appeal”) is not concerned with correcting error and in that respect is to be differentiated from the statutory rights of appeal that have gradually become an established part of the judicial system. Nor is it a review de novo as a further stage in a tiered process. Rather, the review is an attribute of a recognised mechanism by which the exercise of judicial power may be delegated to an officer of the Court who is not a judge, such as a registrar. The right to seek review attaches to the delegation and is an attribute of the nature of the delegated authority.
[3]So, if a registrar exercises delegated judicial power within a formal structure that enables review by the Court, the order of the registrar takes effect as an exercise of judicial power by the judges of the Court, but the exercise of that delegated power depends for its validity upon the availability of review by the judges of the Court. The exercise of the delegated power is not deferred until there has been a review or confirmation of the order by a judge. Nor does the exercise of delegated judicial power operate in some provisional manner pending a review. Rather, the registrar’s order takes effect as an order of the judges of the Court but on the basis that a judge may be asked to make an order in place of the exercise of delegated authority.
[4]Then, if the review process is validly invoked in respect of an order made by a registrar, there is the possibility that by subsequent decision of a judge of the Court a different order will be made in place of the existing order. In effect, the delegated exercise of power is undone or revoked and a decision by a judge is made in its place.
Reviews of Registrar decisions in migration matters follow these same principles and operate in the same way as other areas of law within the Commonwealth courts. In BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307 (“BIM21 – Federal Court”) at [11] and [14] per Burley J the Federal Court observed that:
11The Registrar’s decision to dismiss the proceeding was an exercise of delegated power. Judicial power of the Commonwealth may only be exercised by judges of federal courts exercising federal jurisdiction. However, federal judicial power may be delegated to registrars if the power exercised by them is subject to review or appeal by a judge or judges of the court; Harris v Caladine [1991] HCA 9; 172 CLR 84 at 94–95 (Mason CJ and Deane J), 123, 126 (Dawson J), 150–151 (Gaudron J) and 164 (McHugh J). The opportunity for a review by way of hearing de novo is sufficient to satisfy this requirement; Harris at 95, 123, 164. The Full Court in Bechara v Bates [2021] FCAFC 34; 286 FCR 166 at [2]–[4] (Allsop CJ, Markovic, Colvin JJ) considered the nature of the power exercised by a registrar and the review process that follows, observing that judicial power may be exercised by an order made pursuant to a delegation, but only if the order may be reversed or corrected by a judge on review; and the review, or de novo appeal, is not concerned with correcting error or part of a tiered process but as a fresh hearing which may result in a different order having the effect of undoing or revoking the decision of the registrar.
14 The primary judge considered the two grounds advanced by the applicant’s application for judicial review of the Tribunal’s decision (set out above) as a hearing de novo, thereby not considering the correctness of the decision of the Registrar to dismiss the application to set aside the orders of 13 June 2023 but considering the application for an extension of time within which to seek a review of the dismissal order afresh. That was the appropriate course to take.
In this case it is first necessary to consider whether an extension of time in which to file the Propose Review Application ought to be granted. In considering the merits of the Proposed Review Application as one of the factors for consideration in relation to an extension of time it will be necessary to have regard to the general review principles outlined above.
EXTENSION OF TIME
Relevant considerations
In order for the Proposed Review Application to proceed, CTQ23 needs the Court to grant an extension of time in which to file the Proposed Review Application.
Under r 21.02(2)(a) of the GFL Rules the Court may grant an extension of time “on any terms that the Court … thinks fit”. By way of comparison, under s 477(2) of the Migration Act, when determining whether to extend time for the filing of a proposed application for judicial review of a migration decision there are no mandatory relevant considerations, and thus the discretionary power to extend time is unfettered, save that consideration must be given to whether it is in “the interests of the administration of justice” for time to be extended: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573 (“Katoa”) at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Despite the seemingly broad nature of the wording of the phrase “on any terms the Court … thinks fit” this Court has generally adopted the well-established considerations identified in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”), FCR at 348-349 per Wilcox J (and referred to approvingly in Katoa at [13] per Kiefel CJ, Gageler, Keane and Gleeson JJ); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ, as relevant considerations in determining extension of time applications under s 256(1)(b) of the FCFCOA Act and r 21.02(2)(a) of the GFL Rules in relation to Registrar’s decisions on judicial review applications under the Migration Act: see, for example, Vavilala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 768 at [10]-[15] per Judge Humphreys; Satty v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 982 at [36] per Judge Kirton; CTT23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 274 at [19] per Judge Ladhams; BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFam2G 902 (“BIM21”) at [27] per Judge Champion (in BIM21 – Federal Court the Federal Court dismissed an application for an extension of time for leave to appeal BIM21); Dhaliwal v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 320 at [11] per Judge Goodchild; Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 479 at [40] per Judge Champion; DBW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 82 at [30] per Judge Kirton. Those well-established considerations are:
(a)the length of the applicant’s delay;
(b)the reasons for the applicant’s delay;
(c)any prejudice to the respondent or third parties; and
(d)the merits of the underlying application.
This approach to these considerations as being relevant considerations in relation to extending time under r 21.02(2)(a) of GFL Rules was noted by the Federal Court in BIM21 – Federal Court) at [15] per Burley J without any criticism or suggestion that a wider or other considerations ought to have been applied:
15In considering whether to exercise his discretion as to any extension of time, the primary judge noted that discretion must be exercised in the interests of justice. The primary judge accepted the Minister’s submission that the common considerations which inform the discretion to extend time under s 477 of the Migration Act may be relevant to this exercise of discretion and that those considerations include length of the delay, explanation for the delay, any relevant prejudice to the Minister and the merits of the proposed substantive application, citing Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604 at [12].
and at [17]-[18] per Burley J dealt with the primary judges’ treatment of those considerations, again without any criticism or suggestion that wider or other considerations ought to have been applied.
There have, however, been some judgments of this Court which appear to have adopted a somewhat different approach when considering the considerations to be applied to the phrase “on any terms that the Court … thinks fit” in r 21.02(2)(a) of the GFL Rules.
In BHP22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1137 (“BHP22”) this Court was dealing with an application to extend time under r 21.01(2)(a) of GFL Rules for a review of a Registrar’s decision to summarily dismiss an application for judicial review of a migration decision: BHP22 at [22]-[25] per Judge J Young. The Court noted that the application for review had to be made within 7 days under r 21.01 of the GFL Rules, but that that time might be extended on any terms the Court thinks fit: BHP22 at [30] per Judge J Young. In BHP22 the Court did not set out the usual relevant considerations referred to in Hunter Valley Developments and Katoa as such, but did refer, either directly or indirectly, to most of those considerations in observing, BHP22 at [32]-[34] per Judge Young, as follows:
32… the Application was made 143 days after the expiry of the statutory timeframe.
33The Minister opposed any extension of time in this matter. The applicant did not provide any explanation for the late filing other than to say she was not paying attention.
34Despite the absence of any acceptable explanation for the late filing of the Application, I am satisfied in this instance that it is appropriate for the time for filing the review Application to be extended. This is in circumstances where the applicant is self-represented, appeared to be confused by the Court processes, has limited English skills and there is no particular prejudice to the Minister (other than as to costs) if time were to be extended.
In Tamber v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 1120 (“Tamber (No 2)”) at [10]-[11] per Judge Mansini the Court observed as follows:
10That the Court’s Rules provide a short timeframe for filing applications of this nature reflects the intention that an application for review of a registrar’s decision be made promptly and without delay. Whether to extend the proscribed time for filing is at the broad discretion of the Court having regard to the particular circumstances of the case.
11In the present case, it may be accepted that there was at least an attempt at lodgement of the application for review of the Judicial Registrar’s decision within one day after the expiry of the proscribed timeframe. Having regard to the Applicant’s self-representation, the fact that English is not his first language, the relatively short period of delay and the absence of any particular prejudice to the First Respondent, I am minded to extend the time for filing such that the time for application for review of the Judicial Registrar’s decision be extended to 15 November 2023.
There can be no question that, particularly where the delay is short and no injustice is done to the Minister, that the Court may take into consideration when considering the reasons for explanation for the delay considerations such as the fact that a person is self-represented, does not speak English (or English as a first language), does not have a lawyer to assist them, or is in immigration detention: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] per Yates, Wheelahan and O’Bryan JJ; MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J. Such considerations are not however a basis for a failure to consider whether or not a proposed application was reasonably arguable or had any reasonable prospects of success. In determining whether a proposed application is reasonably arguable or has any reasonable prospects of success it is not necessary for an applicant to positively establish the likelihood of success at final hearing: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158) but, as was observed by the Federal Court in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J:
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.
See to similar effect MZZIV at [6] per Mortimer J, and SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 (“SZSDA”) at [39] per Foster J.
Curiously, in BHP22 and Tamber (No 2), having extended time to file the proposed review application, without considering, as part of the application to extend time, whether the proposed application was reasonably arguable or had reasonable prospects of success, the review applications in both cases were dismissed on the basis that they had no reasonable prospect of success: BHP22 at [56] per Judge J Young; Tamber (No 2) at [67] per Judge Mansini.
Having regard to the cases set out at [20] above, and to the observations made by the Federal Court in CAL15, MZZIV and SZSDA, referred to at [25] above, the Court considers that when considering the considerations to be applied in applying the phrase “on any terms that the Court … thinks fit” in r 21.02(2)(a) of the GFL Rules the better approach is to have regard to each of the well-established considerations referred to at [20] above. It is to those considerations that the Court now turns.
Length of delay
The prima facie rule is that proceedings commenced outside the relevant limitation period will not be entertained: Hunter Valley Developments, FCR at 348 per Wilcox J, referred to with approval in Katoa at [52] per Gordon, Edelman and Steward JJ; see too Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) at [16] per McHugh J; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 86; (1996) 139 ALR 1; CLR at 553 per McHugh J.
The delay in this case is 18 days. That is 11 days more than the prescribed time limit of 7 days, or, put differently, a period one and a half times longer than the statutory limit. Given the 7 day limitation period that delay is not insignificant, but is also not so significant as to warrant being described as inordinately lengthy or so unwarrantable as to be a sufficient reason of itself to deny the grant of discretionary relief: AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 at [57] and [61] per Bromwich J. The length of the delay in this case is, on balance, a factor which tells neither for nor against an extension of time being granted.
Explanation for delay
Neither the November 2023 nor April 2024 Affidavits provide any explanation for the delay in the making of the Proposed Review Application to this Court. Given the opportunity at hearing in this Court to explain why the Proposed Review Application was filed late CTQ23 (at Transcript, page 5) referred to two matters. The first was the fact that he was a Cambodian living in Malaysia and now wished to remain in Australia as his life had been very difficult in Malaysia. Plainly, that is neither relevant nor an explanation for the late filing of the Proposed Review Application. Second, CTQ23 said that “I did not see the stuff that they sent to me initially. I only realised that something was sent to me the second time around, and that is why I’m now making this application”: Transcript, page 5. That explanation relates to the making of the Judicial Review Application which was summarily dismissed by reason of CTQ23 – Registrar’s Decision, and does not relate to the reasons for late filing of the Proposed Review Application.
CTQ23 has therefore failed to provide any acceptable or proper explanation for the delay. This weighs against the granting of the extension of time.
Prejudice
There is little prejudice to the Minister other than the significant public interest in the finality of judicial decisions: Marks at [15]–[17] per McHugh J. The mere absence of prejudice to a respondent can never of itself justify the exercise of the discretion to grant an extension of time: Hunter Valley Developments, FCR at 349 per Wilcox J. This factor does not weigh against, but nor does it weigh in favour, of granting an extension of time.
Merits of the underlying application
The single ground of the Proposed Review Application is set out at [7] above.
The merits of the Proposed Review Application are likely to be the deciding consideration in a case such as this where the other factors do not otherwise point to an obvious answer as to whether an extension of time ought to be granted.
The Proposed Review Application seeks to review the decision in CTQ23 – Registrar’s Decision where the Registrar determined that the Judicial Review Application did not have reasonable prospects of success and therefore summarily dismissed it pursuant to r 13.13(a) of the GFL Rules. As set out at [15]-[16] above the Court would, if an extension of time were granted, be required to consider the Judicial Review Application afresh. Likewise, in considering the merits of the Proposed Review Application for the purposes of determining whether to grant an extension of time, it is necessary for the Court to consider afresh whether or not there is a basis for summary dismissal of the Judicial Review Application.
It suffices to observe that the Tribunal Application was dismissed because CTQ23 did not appear at the Tribunal, and that the Dismissal Decision was confirmed by the Tribunal when CTQ23 did not apply for reinstatement of the Tribunal Application within the prescribed statutory period: see [5(c)-(j)] above.
The evidence before the Court indicates that the Tribunal Hearing Invitation and the Notification of the Dismissal Decision were sent to the Nominated Email Address of CTQ23, but, and this does not appear to be in dispute, both the Tribunal Hearing Invitation and the Notification of the Dismissal Decision went into CTQ23’s email spam folder at the Nominated Email Address. Indeed, in both the November 2023 and April 2024 Affidavits CTQ23 states in identical terms at [2] (in each affidavit) that:
The only reason there was no response as it [the Tribunal Hearing Invitation] went into spam folder.
Summary dismissal
Under ss 143(2) and 224(1)(g) of the FCFCOA Act and r 13.13(a) of the GFL Rules the Court has the power to give summary judgment to dismiss an application.
The principles in relation to the Court’s power to summarily dismiss an application are well-settled and can be summarised as follows:
(a)the moving party (here, the Minister) bears the onus of persuading the Court that the application has no reasonable prospect of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [45] and [66] per Reeves J;
(b)as explained by French CJ and Gummow J in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 (“Spencer”) at [22] per French CJ and Gummow J in relation to s 31A of the Federal Court of Australia Act 1976 (Cth) (analogous to s 143 of the FCFCOA Act):
the section … will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the classes of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(c)the concept of “no reasonable prospect of success” involves a lower threshold than previous tests for summary dismissal that have required that the proceeding would necessarily fail: Spencer at [52]-[53] per French CJ and Gummow J. Nonetheless, the discretion must still be exercised with caution: Spencer at [24] and [60] per French CJ and Gummow J; and
(d)an assessment of whether a proceeding has no reasonable prospect of success involves the making of value judgments in the absence of a full and complete factual matrix and argument: the provisions vest a discretion in courts: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401; (2009) 259 ALR 319 at [28] per Spender, Graham and Gilmour JJ.
In Spencer at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ it was observed that:
(a)no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
(b)the expression cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
(c)the creation of a lexicon of words or phrases intended to capture the operation of the phrase is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
(d)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
(e)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
(f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
(g)full weight must be given to the expression (“no reasonable prospect”) as a whole, and it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
Success in this context is to be measured by reference to the fact that the Dismissal Decision may be liable to be set aside on judicial review where it is found to be affected by material jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, provided, however, that the Court does not have jurisdiction to review the merits of the Dismissal Decision or determine CTQ23’s claim for a Protection Visa: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Discretion to dismiss for non-appearance – the Dismissal Decision
Section 426A(1A) of the Migration Act provides as follows:
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Under s 426A(1A) of the Migration Act, the Tribunal may therefore exercise its discretion to dismiss an application for non-appearance under s 426(1A)(b) if an applicant is invited to appear before the Tribunal pursuant to s 425 of the Migration Act but does not appear at the Tribunal hearing the subject of the invitation.
In this case the Tribunal’s power to dismiss the Tribunal Application under s 426(1A)(b) of the Migration Act was properly enlivened because:
(a)CTQ23 was properly invited to the Tribunal Hearing pursuant to s 425 of the Migration Act;
(b)the Tribunal Hearing Invitation met the requirements of s 425A of the Migration Act;
(c)the Tribunal Hearing Invitation indicated the day, time and the place of the hearing: Migration Act, s 425A(1): CB 64;
(d)the Tribunal Hearing Invitation was sent by email to the Nominated Email Address, which was CTQ23’s nominated email address: Migration Act, s 425A(2), on 4 October 2023 which was 14 days prior to the date of the Tribunal Hearing: Migration Act, s 425A(3) and reg 4.35D of the Migration Regulations1994 (Cth): CB 63; and
(e)the Tribunal Hearing Invitation contained a statement under the heading “What will happen if you don’t appear” describing the effect of s 426A of the Migration Act in accordance with s 425A(4) of the Migration Act: CB 63.
As CTQ23 failed to appear at the Tribunal Hearing: CB 72, the Tribunal had an enlivened discretion to dismiss the Tribunal Application under s 426A(1A) of the Migration Act.
The Confirmation Decision
The notification of the Dismissal Decision: CB 75-81, complied with the requirements of s 426B of the Migration Act in that it:
(a)provided the date and time and reasons for the Dismissal Decision: Migration Act, s 426B(2): CB 78-79;
(b)was sent to the Nominated Email Address within 14 days after the date of the Dismissal Decision: Migration Act, ss 426B(5) and 441A: CB 75-76;
(c)described the effect of s 426B(1B)-(1F) of the Migration Act: Migration Act s 426B(6): CB 80-81, including by specifying that CTQ23 may apply to the Tribunal for reinstatement of the Tribunal Application by 9 November 2023, that is, 14 days after 26 October 2023 (the latter being the date CTQ23 was taken to have received notice of the Dismissal Decision): CB 76.
As CTQ23 did not apply for reinstatement of the Tribunal Application within the 14-day period stipulated by s 426A(1B) of the Migration Act the Tribunal was bound to confirm the Dismissal Decision: Migration Act, s 426A(1E), in the sense that the Tribunal had no discretion to do otherwise.
Whether exercise of discretion to dismiss legally reasonable
In certain circumstances unreasonableness, and more correctly, legal unreasonableness, may constitute jurisdictional error: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225 (“Li”) at [63]-[76] per Hayne, Kiefel and Bell JJ. Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness in migration cases is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ. It is well established that unreasonableness may be found where an administrative decision-maker reaches a conclusion that no reasonable decision-maker could have reached, or makes a decision that lacks an evident and intelligible justification: Li at [76] per Hayne, Kiefel and Bell JJ. Unreasonableness is not established merely because reasonable minds could have come to different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ. The test for legal unreasonableness is stringent: Li at [113] per Gageler J; Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713 (“SZVFW”) at [11] per Kiefel CJ.
In SZVFW the High Court, unanimously, allowed an appeal by the Minister and held that the exercise of the discretion by the Tribunal, to proceed to determine a matter in the absence of the applicants pursuant to s 426A of the Migration Act, was legally reasonable. In so doing, the High Court observed that:
(a)the intention of the scheme of the Migration Act is that the Tribunal be permitted to consider the exercise of its powers under s 426A of the Migration Act if the preconditions for the exercise of that power have been met: SZVFW at [7] per Kiefel CJ;
(b)the task of a court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable, which requires an assessment as to whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power, and thus, in relation to the particular decision in issue, whether the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power: SZVFW at [78]-[80] per Nettle and Gordon JJ;
(c)the reasonableness of a decision made by an administrative decision-maker depends upon the existence of justification, transparency and intelligibility within the decision-making process, but also as to whether the decision falls within a range of possible, acceptable outcomes defensible in respect of the facts and law and, in that regard, error may be identified simply because the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances: SZVFW at [82]-[83] per Nettle and Gordon JJ; and
(d)“legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case … ”: SZVFW at [84] per Nettle and Gordon JJ.
In SZVFW at [70]-[71] per Gageler J the following observations were made:
[70]Nothing before the Tribunal took the respondents’ application for review into the realm of the extraordinary. To the contrary, the respondents’ failure to respond to the earlier invitation from the Minister’s Department and their failure to provide the Tribunal with any further documentation in support of their claims for protection, both of which considerations were expressly taken into account by the Tribunal, suggested that a further attempt by the Tribunal to make contact with them would be unlikely to elicit a response.
[71]The Tribunal did not act unreasonably in choosing to make the decision without taking any further action to allow or enable the respondents to appear before it. The primary judge’s conclusion that the Tribunal did act unreasonably in so doing was wrong. The Full Court should have so decided.
In SZVFW at [140]-[141] per Edelman J the following observations were also made:
[140]The matters relied upon by the primary judge do not, even in combination, establish legal unreasonableness. In particular, two matters of statutory context require a highly demanding approach in determining whether legal unreasonableness exists in the exercise of the power under s 426A(1), which is in Div 4 of Pt 7 of the Migration Act. First, there was the objective of review of protection visa decisions under Pt 7, expressed in s 420(1) as providing a mechanism that is “fair, just, economical, informal and quick”. Secondly, and in relation to “fairness and justice”, s 422B(1) provided that “[Div 4] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with” and, as Nettle and Gordon JJ observe, the effect of s 441C(4) was to deem the respondents to have received the invitation to the hearing.
[141]The decision by the Tribunal, for the reasons it gave, was not legally unreasonable. Three further reasons, additional to those given by the Tribunal, are also relevant. First, in the original applications by the respondents to the Minister, they undertook to inform the Department if they intended to change their address for more than 14 days while their applications were being considered. No change of address was provided. It was reasonable for the Tribunal to draw the inference that the respondents were still accessing mail at that address. Secondly, the letter from the Department refusing the respondents’ original applications was sent to their nominated address. Thirdly, prior to the decision of the delegate, the respondents had not attended a scheduled interview with the Department, despite apparently being made aware of the interview by letters sent to their nominated address and a telephone call rescheduling the interview. It would have been reasonable to infer that a rescheduled hearing before the Tribunal might have been futile.
In dismissing a judicial review application asserting that the Tribunal ought to have done more to endeavour to contact an applicant before proceeding with a hearing and dismissing the judicial review application the then Federal Circuit Court in COW17 v Minister for Immigration and Border Protection [2020] FCCA 2873 (“COW17”) rejected an argument that the Tribunal acted unreasonably in failing to make further endeavours to contact the applicant who did not appear at a Tribunal hearing. In COW17 at [66] per Judge Mercuri the Court observed that:
It may well have been possible for the tribunal to do more. It could have attempted to contact the applicant by telephone. It could have made inquiries of the Department to determine whether they were aware of any changes to the applicant’s contact details. However, there is an onus on an applicant to prosecute their application, and moreover, the mere fact that there was more that the tribunal could have done, does not lead to the conclusion that it acted unreasonably in not taking this action.
In CJZ16 v Minister for Immigration and Border Protection [2019] FCCA 29 (“CJZ16”):
(a)all of the preconditions for the Tribunal to validly exercise its powers pursuant to s 426A of the Migration Act had been met; and
(b)the applicants:
(i)did not attend the interview before the Delegate, despite being invited to do so;
(ii)did not forward materials in support of their protection visa application to the Tribunal to advance their claims; and
(iii)did not attend the Tribunal Hearing, despite being invited to do so, and being reminded, twice by SMS, of the Tribunal Hearing.
In CJZ16 at [28] per Judge Lucev the then Federal Circuit Court found that:
… the behaviour of the applicants up to the time of the Tribunal Decision indicated a disengagement with the Protection Visa application process inconsistent with applicants legitimately pursuing their Protection Visa application such that there was nothing to suggest to the Tribunal that the applicants’ non-appearance was out of character or amiss, or that there was any basis for concluding that the applicants would attend an adjourned Tribunal Hearing: MZALO v Minister for Immigration & Border Protection [2016] FCA 1339 at [22]-[28] per Mortimer J; [Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 150 FCR 439; (2006) 231 ALR 630] at [39] per Spender, French and Cowdroy JJ, SZVFW - High Court at [70] per Gageler J and [141] per Edelman J. By reason of the applicants being invited to the Tribunal Hearing in the manner and form prescribed by the Migration Act there was no denial of procedural fairness by failing to give the applicants an opportunity to be heard. Nor was it, in the circumstances set out above, unreasonable for the Tribunal to proceed to determine the applicants' review application in circumstances where the Tribunal had proper grounds for so doing: there was no abuse, or excess, of power in the Tribunal Decision. There is, therefore, no jurisdictional error on the basis of procedural fairness or unreasonableness in relation to the Tribunal's invitation, hearing and determination process.
In ATI21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 3 at [42]-[45] per Judge Laing:
(a)the applicant had been notified of the Tribunal hearing by letter sent by express post some months prior to the Tribunal hearing;
(b)SMS reminders of the Tribunal hearing date and time were attempted to be sent to the applicant by the Tribunal, but it appeared that the mobile telephone number provided by the applicant had been disconnected; and
(c)the applicant had not advised that email was his preferred mode of communication with the Tribunal,
and, in the circumstances, this Court found that the Tribunal’s failure to use an email address provided by the applicant to receive “Medicare letters” was not legally unreasonable.
In this case:
(a)CTQ23 had not engaged with the Tribunal proceeding other than by filing the Tribunal Application and seeking Medicare letters;
(b)CTQ23’s non-appearance at the Tribunal Hearing was not “out of character” given his failure to complete and return the pre-hearing information form to the Tribunal;
(c)the Tribunal attempted to contact CTQ23 twice in the lead up to the Tribunal Hearing via SMS to the Mobile Number provided in the Tribunal Application: CB 88; and
(d)the Tribunal sent the Tribunal Hearing Invitation to the Nominated Email Address: CB 63. The Tribunal Hearing Invitation was sent and was received by CTQ23 (and the matter is therefore distinguishable from Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393; (2014) 141 ALD 619 at [93]-[102] and [138]-[141] per Mortimer J), and the fact that the Tribunal Hearing Invitation went to the spam folder of the Nominated Email Address was not a matter for which the Tribunal was responsible, or which was otherwise within the power of the Tribunal to deal with.
The Tribunal was plainly satisfied that the statutory procedure under s 425 of the Migration Act for inviting CTQ23 to appear had been followed and where CTQ23 without explanation failed to appear, the Tribunal acted reasonably in deciding to proceed to make a decision on the merits of the application without making any further attempt to make contact with CTQ23: SZVFW at [69]-[70] per Gageler J, or in this case to dismiss the Tribunal Application for non-appearance: CJZ16; COW17 at [66] per Judge Mercuri; BHQ20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 298 at [65]-[67] per Judge Kendall.
In the above circumstances, applying the law to the facts, particularly the facts as set out at [44] and [56] above, the exercise of the Tribunal’s discretion under s 426A(1A)(b) of the Migration Act to dismiss the Tribunal Application was not legally unreasonable.
Procedural fairness
To the extent that the sole ground of review suggests that CTQ23 was denied procedural fairness because he did not receive a personal call from the Tribunal about the time and date of the Tribunal Hearing, it is without merit. CTQ23 was informed of the date and time of the Tribunal Hearing by the Tribunal Hearing Invitation sent to the Nominated Email Address and had been given instructions as to how he was to attend the Tribunal Hearing, including that he was to appear in person before the Tribunal at Level 4, 15 William Street, Melbourne VIC 3000, 15 minutes prior to the start time: CB 64. No more was required of the Tribunal.
The Tribunal’s procedural fairness obligations required that it comply with the requirements in Div 4 of Pt 7 of the Migration Act, and, for the reasons set out at [44] and [56] above, the Tribunal complied with those requirements.
There is, therefore, no basis for CTQ23 to complain of a denial of procedural fairness.
Conclusion – merits of the underlying application
The Court has concluded that the Proposed Review Application has no reasonable prospect of success. It is a case which, were it to go forward to hearing, would almost certainly be summarily dismissed because it does not have any reasonable prospect of success. This conclusion almost inevitably precludes an extension of time being granted: CAL15 at [4] per Mortimer J.
CONCLUSIONS AND ORDER
None of the factors for consideration on an application to extend time weigh in favour of extending time for CTQ23 to file the Proposed Review Application. Critically, and decisively in this case, the merits of the Proposed Review Application are so weak that it would almost certainly be summarily dismissed if it went to hearing because it does not have any reasonable prospect of success.
It follows that the Court must refuse to grant an extension of time under r 21.02(2)(a) of the GFL Rules in which to file the Proposed Review Application.
Because an extension of time has not been granted it is unnecessary to make a further order that the Proposed Review Application be dismissed as incompetent: BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; CAF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1527 at [53] per Judge Lucev.
The Court will hear the parties as to costs.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 25 October 2024
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