CTV22 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1163
•11 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CTV22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1163
File number(s): SYG 1161 of 2022 Judgment of: JUDGE ZIPSER Date of judgment: 11 November 2024 Catchwords: MIGRATION – judicial review of Administrative Appeals Tribunal decision – dismissal for non-appearance – costs ordered Legislation: Migration Act 1958 (Cth) s 65, s 476, s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) s 13.06(1)(c)
Cases cited: BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517 Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 5 November 2024 Place: Parramatta Applicant: No appearance Solicitor for the Respondents: Mr S Knuckey of Mills Oakley ORDERS
SYG 1161 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CTV22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
11 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
3.The applicant pay the first respondent’s costs fixed in the sum 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 ZIPSER
INTRODUCTION
On 6 August 2022, the applicant filed an application, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 18 March 2022 (Court Application). The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Protection (Class XA) (subclass 866) visa under s 65 of the Act. Since the Court Application was filed more than 35 days from the date of the Tribunal’s decision, the applicant requires an extension of time under s 477 of the Act.
For the reasons that follow, the Court Application is dismissed under rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
FACTUAL BACKGROUND
On 24 November 2012, the applicant, a citizen of Malaysia, arrived in Australia on an Electronic Travel Authority (Class UD) (subclass 976) visa. On 24 February 2013, the applicant’s visa expired, and he remained unlawfully in Australia until he applied for a protection visa, the subject of this Court proceeding.
On 15 October 2015, the applicant lodged an application for a Protection (Class XA) (subclass 866) visa.
On 2 March 2016, a delegate of the first respondent refused to grant the applicant a protection visa.
On 4 March 2016, the Department emailed the applicant a refusal decision letter to the email address provided in his protection visa application.
On 2 July 2018, the Department received an updated email address for the applicant (Updated Email Address)
By March 2020, the Department formed the view, following some Federal Court decisions including BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517, that it needed to send the applicant new correspondence about the decision dated 2 March 2016 to refuse to grant him a protection visa.
On 6 June 2020, the Department emailed the applicant an amended refusal decision letter to the Updated Email Address.
On 8 December 2021, the applicant applied to the Tribunal for review of the delegate’s decision.
On 10 January 2022, the Tribunal sent a letter to the applicant inviting him to comment on the validity of his review application, since the application appeared to be lodged with the Tribunal outside the time limit permitted in the Act.
On 21 January 2022, the applicant responded to the Tribunal’s invitation. He stated that he did not receive the Department’s email dated 6 June 2020, and he only became aware of the refusal decision after obtaining documents in response to a freedom of information request.
On 18 March 2022, the Tribunal determined it had no jurisdiction to review the delegate’s decision.
PROCEEDINGS IN THIS COURT
Application and procedural orders
On 6 August 2022, the applicant filed the Court Application. The application contained two grounds as follows(reproduced as written):
There exist errors in my case, which lead to unfavourable decision.
1.The Department should not make a second refusal decision based on the same application documents.
If the Department believed its decision was wrong, it should give me an opportunity to appeal.
On 9 March, 2020, the Department told me by email that I may be eligible to apply for review of my protection visa refusal decision.
On June 6, 2020, the Department made a new refusal decision after notifying me that I could appeal. This is not legal.
Further AAT failed to consider this procedural error.
2.I used another email [email protected] for contact when I applied for a protection visa. I don't know who changed my email to [email protected]. I doubt if the Department followed the appropriate procedures in processing this change.
Further, AAT failed to consider this matter.
In light of the time limits on applications to this Court in s 477 of the Act, the Court Application was filed about 106 days out of time. The applicant stated in an affidavit filed on 10 August 2022 as an explanation for his lengthy delay:
The application fee for court appeal is too expensive. It took me some time to save money.
As stated by the first respondent in a written submission filed on 4 September 2024, this explanation is unsatisfactory.
On 6 August 2024, a registrar made orders that the applicant file and serve the following on or before 21 August 2024:
(a)any amended application giving proper particulars of the grounds of the application;
(b)any affidavit evidence; and
(c)written submissions.
The applicant did not file or serve a written submission and thereby did not comply with this part of the registrar’s orders. Between 7 August 2022 and 5 November 2024, the applicant did not file any other material in support of his case.
Hearing on 5 November 2024
The hearing on 5 November 2024 commenced at the scheduled time of 10:15 am and concluded shortly after 10:30 am. The applicant did not appear at the hearing. The matter was called outside the court room twice between 10:15 am and 10:30 am.
Mr Simon Knuckey from Mills Oakley appeared for the first respondent. He requested that the application be dismissed under rule 13.06(1)(c) of the Rules.
The Court’s file indicates that on 24 September 2024 the Court sent an email to the applicant informing him of the date and location of the hearing on 5 November 2024. The Court sent the email to the email address recorded by the applicant in the Court Application as his email address. On 11 July 2024, the Court sent an email to the applicant notifying him of a callover by telephone on 6 August 2024 and the applicant attended the call-over. This indicates the applicant continued to use the same email address in July 2024.
The Court is satisfied that the applicant was aware of the date and location of the hearing on 5 November 2024.
For the above reasons, the Court accedes to the request of the first respondent to dismiss the matter under rule 13.06(1)(c) of the Rules.
COSTS
Mr Knuckey sought an order that the applicant pay the first respondent’s costs in the amount of $4,189.38. This amount appears fair and reasonable. The Court will make a costs order in this amount.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 11 November 2024
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