CZG17 v Minister for Immigration
[2018] FCCA 859
•16 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CZG17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 859 |
| Catchwords: PRACTICE & PROCEDURE – Application for an extension of time to make a competent application to the Court – factors considered – no satisfactory explanation for the delay – no reasonable prospects of success – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.66, 412, 438, 476, 477, 494B, 494C Migration Regulations 1994 (Cth), reg.4.31 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 |
| Applicant: | CZG17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2104 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 9 March 2018 |
| Date of Last Submission: | 9 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges of Hodges Legal |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison Lawyers |
ORDERS
The application for an extension of time made on 3 July 2016 pursuant to s.477(2) of Migration Act 1958 (Cth) is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2104 of 2017
| CZG17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 3 July 2017 seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) within which to make a competent application pursuant to s.476 of the Act, for review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which on 14 July 2016, determined that it did not have jurisdiction to review a decision of the Minister’s delegate (“the delegate”) made on 18 May 2016 to refuse a protection visa to the applicant.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court book” – “CB”, “RE1”).
b)The affidavit of Julian D’Arcey Pinder, solicitor, made on 14 February 2018 (which annexes a postal record of the Minister’s department in respect of a letter dated 18 May 2016) (no objection).
c)The affidavit of Jennifer Louis Strugnell, solicitor, made on 8 March 2018 (no objection).
I note that the Minister filed a second affidavit of Mr Julian D’Arcey Pinder, also made on 14 February 2018 (regarding a certificate issued pursuant to s.438 of the Act in relation to the applicant). The Minister did not formally seek leave to read the affidavit in the circumstances set out below at [57] – [58].
Background
The applicant is a citizen of Malaysia (CB 14). She arrived in Australia on 27 December 2015 (CB 21). She applied for a protection visa which was received by the Minister’s department on 29 March 2016 (CB 1 to CB 42). The application was refused by the Minister’s delegate on 18 May 2016 (CB 56 to CB 65).
The applicant sought review of the delegate’s decision by the Tribunal. On 30 June 2016, the Tribunal sent a letter to the applicant, via email, inviting her to comment on the validity of the application, as the Tribunal was of the view that the application was not lodged within the relevant time limit (CB 78 to CB 79). The applicant was requested to make any comments, in writing, by 14 July 2016.
On 5 July 2017, the applicant made a telephone call to the Tribunal to enquire about her review to the Tribunal. A Tribunal officer explained to the applicant the letter that had been sent to her on 30 June 2016, and the applicant confirmed that she understood (see the “Case Note” at CB 81).
The applicant sent an email to the Tribunal on 8 July 2017 which stated as follows (CB 82):
“…I would like to progress the review of my case. [I] just open my mail and received ur last email sent to me. [I] would like to know the next step I have to do to make things smooth.”
[Errors in original.]
On 14 July 2016 the Tribunal determined that it did not have jurisdiction to review the delegate’s decision (CB 88 to CB 89).
The Tribunal found that the applicant had been properly notified of the delegate’s decision by correspondence sent by email to her on 18 May 2016 ([5] at CB 89). It further found that pursuant to s.494C of the Act, the applicant was taken to have been notified of the delegate’s decision on 18 May 2016 ([5] at CB 89).
The Tribunal found that pursuant to s.412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994 (Cth) (“the Regulations”), the application for review must have been made to it within 28 days of that date ([4] at CB 89). The Tribunal found, in the circumstances, that the prescribed period within which to apply for review to the Tribunal ended on 15 June 2016 ([8] at CB 89).
It concluded that the application made to it on 16 June 2016 was not made in accordance with the relevant statutory and regulatory requirements. On this basis, the Tribunal found it did not have jurisdiction to review the delegate’s decision ([9] at CB 89).
Before the Court
By orders made by the Court on 15 August 2017 the parties were given the opportunity file any evidence by way of affidavit and written submissions. The applicant has filed no evidence. However, the applicant filed written submissions on 7 March 2018.
The Application for an Extension of Time
There is no dispute, and given the evidence before the Court, there could be no reasonable basis for a dispute, that the Tribunal’s decision was made on 14 July 2016. Section 477(1) of the Act requires that an application made to this Court pursuant to s.476 of the Act seeking review of a Tribunal decision, must be made within 35 days of the date of that Tribunal decision.
In the current circumstances, any such application to this Court must have been made on, or before, 18 August 2016. The applicant’s application to the Court, prepared by a solicitor, was in fact lodged (and there is no dispute about this date) on 3 July 2017. That is, it was made 319 days after the last date by which it could have been made pursuant to s.476(1) of the Act.
In the circumstances, the purported application said to have been made pursuant to s.476 of the Act is not competent.
However, s.477(2) of the Act provides that, nonetheless, an applicant may apply to this Court, in writing, for an order from this Court to extend time for the filing of an application pursuant to s.476 of the Act, if it is in the interests of the administration of justice to do so. I am satisfied on what is before the Court, that the applicant has made such an application in writing. The grounds of the application to extend time are in the following terms:
“1. The Applicant was self represented at the AAT and did not understand the outcome.
2. The applicant was unable to obtain legal advice in relation to her predicament.
3. The applicant did not have the resources to pay for legal representation until recently.
4. Failure to allow an extension of time would compound the procedural unfairness alleged in Ground 2 of the application.”
The issue for the Court now is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive.
However, there are a large number of authorities which provide guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442, SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 315, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [18] – [23]).
In the current case, the factors arising from the circumstances presented in considering the exercise of the discretion appear to be the length of the delay, whether any satisfactory or reasonable explanation has been given for the delay, and whether the Minister would suffer any prejudice if time were extended.
Further, and primarily, whether the proposed substantive application for judicial review is sufficiently, or reasonably arguable or has reasonable prospects of success, or has such merit as to justify the extension of time, to allow the matter to proceed to a final hearing in the interests of the administration of justice. In deciding whether to grant an application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.
A preliminary point of explanation of the evidence before the Court is necessary. The Court Book contains a copy of an application for review to the Tribunal dated 3 July 2017 (CB 67 to CB 68). Ms Strugnell’s evidence explains that this is a different application for review made to the Tribunal by the applicant. It is not the application for review relevant to the applicant’s protection visa application the subject of the current proceedings. Ms Strugnell’s affidavit provides a copy of the relevant application for review to the Tribunal (see annexure “JLS01”).
At the hearing of the extension of time, the applicant was represented by a solicitor, as was the Minister.
The applicant’s solicitor submitted that notwithstanding that he had prepared written submissions, the evidence now provided by Ms Strugnell meant that while he had no instructions to withdraw the extension of time application to the Court (he was unable to “contact” his client in the time available to obtain such instructions), he withdrew the written submissions, and did not intend to make any submissions in support of the application to extend time.
Nonetheless, even in these circumstances, it is still necessary for the Court to consider the application to extend time in light of the evidence before it, and the submissions still actively before it. That is, those of the Minister.
The extent of the delay in this case is 319 days after the 35 day limit set out in s.477(1) of the Act. This delay of over 10 months is significant. That factor alone may be sufficient to refuse the application to extend time (AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 at [56] – [62])
While Parliament has clearly provided discretion to this Court to extend time where it is in the interest of the administration of justice, I do not understand that to mean that a lengthy and significant delay cannot weigh heavily against the exercise of the discretion to extend time. Particularly in the circumstances presented in this case.
At its highest, the applicant’s explanation for the delay as set out in the grounds of the application to extend time, is that she was not able to obtain legal advice.
It is important to note that the applicant had made no submissions in relation to the application for an extension of time, even in the written submissions (which were subsequently withdrawn). But far more importantly, she has not put any of these assertions before the Court in any evidentiary context, let alone sought to explain the relevant circumstances surrounding her application to extend time to the Court.
Without evidence, I am unable to find that the applicant has provided any explanation, let alone a reasonable or satisfactory explanation, for the delay in making her application to the Court.
However, even if the applicant’s explanation (that she could not obtain legal advice) had been provided in any evidentiary context, it would still not be a satisfactory explanation for why she failed to make her application to the Court within time (Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [35]).
At best, the applicant “asserts” ignorance of the law. That is not a sufficient element to explain the delay (SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38]). This is particularly so in circumstances where the applicant has made no attempt to explain what steps she may have taken to obtain any legal advice.
I note that the Minister did not submit that he would be prejudiced if time were to be extended.
As noted above, in deciding whether to grant an application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility, or have such merit as to warrant the extension of time.
Given the terms of the proposed ground (see below at [50]), it is important to note the character, and nature, of the Tribunal’s decision. As set out above, the Tribunal found that it did not have jurisdiction to review the delegate’s decision. The Tribunal gave reasons for this (see above at [8] – [11]). The question of the Tribunal’s jurisdiction is a jurisdictional fact for this Court to determine (Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172).
As noted above, the applicant applied for a protection visa (CB 1 to CB 40). In that application, she provided an email address, and agreed to the Minister’s department communicating with her by email at that email address (CB 17).
The delegate refused the application for the protection visa on 18 May 2016 (CB 57 to CB 65). On the evidence before the Court, notification of this decision was sent by email to the email address that the applicant had relevantly provided (CB 56 and see the affidavit of Mr Pinder at [3] and at annexure “JDP01”).
Section 66(1) of the Act provides that when the Minister refuses the grant of a visa, he is to notify the applicant “in the prescribed way”.
The methods by which the Minister may give a document to a person are set out at s.494B of the Act. For current purposes, s.494B(5) of the Act provides that one of those methods is sending a document by email to the last email address provided to the Minister for the purposes of receiving documents (s.494B(5)(b) and (d) of the Act).
On the evidence before the Court, the Minister’s delegate sent a document notifying the applicant of the decision by this method on 18 May 2016.
I note for the sake of completeness, that the notification of the decision complied with the requirements of s.66(2) of the Act (CB 56 to CB 65).
For current purposes, by virtue of s.494C(5) of the Act, the applicant is taken to have received such notification at the end of the day on 18 May 2016.
As set out above, Ms Strugnell’s evidence now before the Court is that the copy of the application for review to the Tribunal reproduced at Court Book 67, is for review of a decision to refuse the applicant a bridging visa.
Ms Strugnell’s evidence is that the true copy of the relevant application for review of the delegate’s decision is attached to her affidavit and reveals that the application for of the decision to refuse the applicant a protection visa, was lodged with the Tribunal on 16 June 2016.
There is no reason, nor has the applicant pointed to any reason, not to accept Ms Strugnell’s evidence. In fact, the applicant’s solicitor’s submission that he had no submissions to make because of Ms Strugnell’s evidence, appears to acknowledge that Ms Strugnell’s evidence should be accepted.
I find that the application for review relevant to the current proceedings was made to the Tribunal on 16 June 2016. The Tribunal was correct to so find ([3] at CB 89).
Section 412(1)(b) of the Act and reg.4.31(2) of the Regulations provide that an application for review must be made to the Tribunal no later than 28 days after the applicant is taken to have been notified of the delegate’s decision.
In the circumstances therefore, the Tribunal found that the application needed to have been made by 15 June 2016 so as to comply with s.412(1)(b) of the Act.
In his written submissions, the Minister submits that according to the reasoning in DZAFH v Minister for Immigration and Border Protection [2017] FCCA 387 (upheld on appeal in DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 (“DZAFH”)) the period in which the applicant was required to apply would appear to have ended on 14 June 2016, not 15 June 2016, as the Tribunal found. That is, the calculation of the relevant date includes the date of the notification or deemed notification. The prescribed period does not begin the day after the date of notification (see DZAFH at [5]).
Plainly, given Federal Court authority, I find that the relevant period ended on 14 June 2016, not 15 June 2016, as the Tribunal found. In any event, there is no error in the Tribunal finding that the application to it was not made within the prescribed time.
The applicant did not press ground one of the proposed substantive application. The sole ground of the proposed substantive application put before the Court is in the following terms:
“The AAT failed to accord procedural fairness to the applicant. The applicant seeks to rely on the following amended particulars
Particulars
a. the application to the AAT was a Part 7 Migration decision as defined in the Act (in simple terms, a decision to refuse an application for a refugee visa).
b. The delegate’s decision was dated 18 May 2016 and there is a file note on page 56 of the Court Book which appears to indicate that the decision was emailed to the applicant on that day. No time for the email is recorded.
c. The application to the AAT in the Court Book is at Court Book 67. It shows the Lodgement date as 3 July 2017.
d. At page 69 of the Court Book there is a Case Note dated 21 June 2016 which does not have any record of the date of receipt of the Application for Review.
e. At pages 70 – 72 there is a letter sent by email to the applicant. This states that the Application for Review was received on 16 June 2016.
f. At pages 78 – 79 there is a letter sent by email to the applicant. This states that the Application for Review was lodged out of time, allegedly on 16 June 2016. This letter invited questions from the applicant.
g. At page 80 there is a file note which indicates that a “Natural justice letter” was sent to the applicant on 30 June 2016 and that a reply was due by 14 July 2016.
h. At page 81 there is a telephone note to indicate that the applicant rang the AAT and was told that she (still) has time to provide comments.
i. At page 82 there is an email received from the applicant stating in part ‘I would like to progress the review’.”
[I note the particulars to the ground are contained in the applicant’s written submissions which were not pressed before the Court. I also note the Minister addressed the particulars to the ground as they appear in the proposed substantive application. In any event, both sets of particulars deal with the application for review to the Tribunal and the date on which it was made.]
The particulars to the ground proceed, in part, on the assumption that the evidence in the Court Book in relation to the application to the Tribunal, was correct. In light of Ms Strugnell's evidence, “accepted” now by the applicant’s solicitor, those particulars do not assist the applicant.
What remains therefore is the sole ground of the proposed substantive application. This is that the Tribunal “failed to accord procedural fairness” to the applicant. On the evidence, this ground has no merit.
The Tribunal wrote to the applicant, giving her the opportunity to comment on the critical and central issue before it (CB 78 to CB 79). That is, the matter of its jurisdiction to review the delegate’s decision. The applicant responded to this (CB 81 and CB 82). In those circumstances, the applicant was not denied procedural fairness at common law. The applicant’s ground has no merit.
The Tribunal had no power to extend the time period for the lodging of a valid application for review to it. Matters such as the length of the delay or compelling circumstances are not relevant (SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66 at [3] and Rana v Minister for Immigration and Border Protection [2014] FCA 1233 at [3]).
I find that the Tribunal did not have jurisdiction to review the delegate’s decision and the Tribunal was correct to so conclude.
In circumstances where the delay in seeking the extension of time pursuant to s.477(2) of the Act is significant, no satisfactory explanation has been provided and importantly, there is no merit in the proposed ground of the substantive application said to be made pursuant to s.476 of the Act, it is not in the interests of the administration of justice to extend time. I will make an order refusing that application.
I should note for the sake of completeness that in his submissions the Minister did note that there was a nondisclosure certificate issued pursuant to s.438 of the Act in this matter (“the s.438 certificate”) (CB 66).
Before the Court, at no time did the applicant make any reference, or submissions, in relation to this matter. In the circumstances, I understood that the applicant did not seek to press this matter.
In any event, I accept the Minister’s submissions that this application is distinguishable from what was relevantly said in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305.
In essence, the Tribunal found that it did not have jurisdiction. In that circumstance, given that the exercise of its jurisdiction to review was not enlivened, none of the procedural fairness obligations on the Tribunal, under the Act, were enlivened. In that light, there was no power for the Tribunal to exercise its jurisdiction, and as the Minister correctly, in that context, submits, the Tribunal’s exercise of jurisdiction could not be affected by the s.438 certificate, or the documents to which it related (ASZ16 v Minister for Immigration and Border Protection [2017] FCCA 1617 at [19] – [20] per Judge Smith, SZOZE & Ors v Minister for Immigration & Anor [2017] FCCA 2575 at [23] per Judge Banes and ATB16 v Minister for Immigration & Anor [2017] FCCA 2306 at [17] per Judge Barnes).
Conclusion
The application for an extension of time is refused. I will make the appropriate order.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 16 April 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Appeal
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