CZS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 371

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZS20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 371

File number(s):

PEG 193 of 2020

Judgment of:

JUDGE KENDALL

Date of judgment:

3 March 2021

Catchwords:

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time application – 680 day delay – inadequate explanation – lack of merit – extension of time refused.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Federal Circuit Court Rules 2001 (Cth), r 44.05

Migration Act 1958 (Cth), ss 425A, 426A, 426B, 441A, 441C, 476, 477

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Maroon v Minister for Immigration & Citizenship [2009] FCA 1284

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Citizenship v Li [2013] HCA 18

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZABP v Minister for Immigration & Border Protection [2015] FCA 1391

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCA Trans 279

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319

Number of paragraphs:

73

Date of hearing:

26 February 2021

Place:

Perth

Applicant:

In person

Counsel for the First Respondent:

Ms G Ellis

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

PEG 193 of 2020

BETWEEN:

CZS20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	3 MARCH 2021

THE COURT ORDERS THAT:

1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.

REASONS FOR JUDGMENT

JUDGE KENDALL

INTRODUCTION

1. The applicant is a citizen of Malaysia. He arrived in Australia on a Visitor visa on 27 November 2016 (Court Book (“CB”) 21).

2. On 17 February 2017, the applicant applied for a Protection (subclass 866) visa (the “visa”) (CB 1-42). The applicant claimed that he left Malaysia due to “POLITCAL ISSUE AND ECONOMY ISSUE”. He explained that he had no job and could not support himself or his family.

3. On 24 March 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 43-55). The delegate was not satisfied that the applicant would face serious or significant harm if he returned to Malaysia.

4. On 10 April 2017, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 56-57). The applicant indicated that he sought review of a WA-010 subclass visa. That appears to have been incorrect and the Tribunal treated the application as an application for review of the protection visa.

5. The applicant was invited to attend a hearing scheduled for 1 May 2018 (CB 62-63). However, the Tribunal rescheduled that hearing to 26 June 2018 (CB 65-69).

6. On 26 June 2018, the applicant failed to attend the hearing (CB 70-74). The Tribunal dismissed the application pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) (the “Non-Appearance Decision”). The applicant was advised, via email, that he was required to seek reinstatement by 10 July 2018.

7. On 10 July 2018, the applicant handed the Tribunal registry a “Change of Contact Details” form (CB 81). It is noted that the applicant’s email had changed.

8. On 11 July 2018, the Tribunal confirmed the Non-Appearance Decision (CB 88-89) (the “Confirmation Decision”).

9. On 25 June 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The applicant filed his application outside of the 35 day time period specified by s 477(1) of the Act. The substantive application was filed 680 days late. In the circumstances, the applicant must obtain an order extending time before he can pursue his substantive application. This judgment addresses whether an extension of time should be granted.

   PROCEEDINGS IN THIS COURT

10. The applicant appeared before the Court without legal representation. He was assisted by a Malay interpreter.

11. The applicant did not file any additional materials despite being given an opportunity to do so. The materials before the Court thus include the judicial review application dated 25 June 2020, correspondence confirming the applicant had received a copy of the Court Book and the Minister’s written submissions (marked as Exhibit 1), a Court Book numbering 91 pages (marked as Exhibit 2) and an outline of submissions filed by the Minister on 27 January 2021.

12. At the hearing, the applicant confirmed that he had received the Court Book and Minister’s written submissions by email. Exhibit 1 corroborates that the applicant was sent both documents. The applicant stated that he did not receive a “hard copy” of the Court Book. The Minister confirmed that the applicant was sent a hard copy of the Court Book to the address nominated on his application. The applicant advised that he “had moved”. This may well be the case.  It is the responsibility of all applicants to ensure that their address for correspondence purposes is current. In any event, the Court is satisfied that the applicant received all relevant documents by email.  This is sufficient and satisfies the Court that the applicant had an opportunity to review all relevant documents if he wished to do so.

13. As noted, the applicant filed his judicial review application in this Court outside of the 35 day time limit specified in the Act. In his substantive application filed on 25 June 2020, the applicant indicated that he required an extension of time. The grounds upon which he argues that an extension should be granted provide:

    I DID NOT HAVE ENOUGH MONEY FOR THE COURT APPEAL PROCESS AT THE TIME.

    I ALSO CAN NOT PAY LEGAL SERVICE FOR APPEAL TO THIS COURT AT THAT MOMENT, SO TO MAKE SURE I IN LAWFULL I GET VOLUNTEERED IN UNION OF WORKERS TO HELP ME IN THIS APPEAL PROCESS.

14. On the basis of the above, the applicant has satisfied s 477(2)(a) of the Act.

15. The applicant did not provide an affidavit in accordance with r 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth). The Court nevertheless proceeds on the basis that compliance with this requirement can be waived.

16. Noting that the applicant was unrepresented, the Court explained to him that, when considering whether to grant an extension of time, the Court generally looks at, but is not restricted to assessing, the following factors:

    (a)length of delay and prejudice;

    (b)whether the explanation for the delay is adequate; and

    (c)whether the proposed substantive application for judicial review has merit.

    (Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)

17. The applicant was asked to address these three factors. His oral submissions and the Minister’s submissions in response are discussed below.

    CONSIDERATION

    Delay and Explanation

18. The delay in this matter is 680 days or 22 months.

19. The delay is substantial. This weighs against granting an extension of time.

20. The applicant’s explanation for the delay is that “he could not afford the filing fee”. The applicant has filed no evidence to support his claim that he had inadequate funds to file his application. Without evidence, there is an insufficient basis upon which to assess the explanation: Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCA Trans 279. While the Court is prepared to accept that the applicant may have had difficulty paying the filing fee, the explanation provided still does not adequately explain the 680 day delay. The applicant also failed to provide any evidence of any inquiries he made with the Court (such as a request for a fee waiver) or any proactive steps he took to address the situation he found himself in. This demonstrates a degree of indifference.

21. The applicant also states that “he cannot afford legal services”. The applicant does not require a lawyer to commence proceedings in this Court. He states that he has had to get assistance from “volunteers”. It is unclear why the applicant could not have sought this assistance earlier.

22. At the hearing, the Court asked the applicant to explain the delay. He stated that he was ignorant. While the Court is sympathetic, ignorance is no excuse: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38].

23. The applicant added at the hearing that he lives in a remote area and did not know how to go about filing his application. He stated that he had no friends who could advise him about how to stay in Australia.

24. Again, this amounts to ignorance and does not provide a reasonable explanation. Further, the applicant himself could have made inquiries. He did not require “friends” to advise him. The Minister’s Department, the Tribunal and the Court Registry could have advised him about how to go about filing an application in this Court.

25. The applicant’s explanations are unsatisfactory.

26. The substantial delay and the lack of adequate explanation for that delay weigh against an extension of time being granted.

    Prejudice

27. The Minister does not claim any significant prejudice but notes that there is a public interest in the finality of administrative decision-making.

28. While the absence of prejudice does not entitle the applicant to an extension, it does weigh in favour of an extension of time being granted.

    Merits

29. The merits of a proposed judicial review application are often considered determinative in matters of this sort.

30. It will rarely be appropriate or in the interests of the administration of justice to grant an extension of time where there is no reasonable prospects of the substantive application succeeding. However, whether there is a reasonable prospect of success is to be determined at a reasonably impressionistic level: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391. The applicant need only present a reasonably arguable case of error.

31. In order to properly assess the merits of the application, it is first necessary to set out in full the Tribunal’s decisions.

32. In full, the Non-Appearance Decision provides:

    1. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 26 June 2018 at 2:00pm. 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 adopted its usual practice of sending SMS reminders about the hearing five business days and one business day before the scheduled hearing. However, these reminders recorded delivery failures.

    2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act, the invitation has not been returned to sender. When the review applicant did not appear before the Tribunal on the day and at the scheduled time and place, the Tribunal was unable to call the applicant because the nominated contact telephone number recorded delivery failure notifications. No satisfactory reason for the non-appearance has been given.

    3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

33. In full, the Confirmation Decision provides:

    1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

    2. On 26 June 2018 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.

    3. 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.

    4. 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.

    5. The Tribunal confirms the decision to dismiss the application.

34. The grounds of the applicant’s judicial review application filed 25 June 2020 provide:

    1. THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE

    2. THE TRIBUNAL DEPRIVED ME OF PROCEDUR FAIRNESS

    3. THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE;

    4. THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABAOUT THE TYPES OF HARM RELEVENT 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.

35. Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong”.

36. To assist the applicant, the Court explained that, in determining whether the substantive application has merit, it needed to look at whether there was a reasonably arguable case that the Tribunal had engaged in jurisdictional error. It was stressed that the Court is not required to be satisfied that there was, in fact, an error. Rather, it need only be satisfied that there is a reasonable argument that the Tribunal fell into jurisdictional error.

37. The Court also explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap and that for migration decisions they most commonly include, but are not limited to, the following categories:

    (a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];

    (b)where the decision-maker ignores relevant material: Craig at [198];

    (c)where the decision-maker relies on irrelevant material: Craig at [198];

    (d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];

    (e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];

    (f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

    (g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

38. The Court also explained that the Court cannot undertake a “merits review” of the Tribunal’s decision in assessing whether his substantive application has a reasonable prospect of success: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

39. Against this background, the applicant stated that the reason he did not attend the Tribunal was because “he lost his phone”. He did not, he submitted, “receive messages”. Whether or not the applicant lost his phone, this did not change the fact that the applicant was properly notified of the Tribunal’s hearing date and time. That is, even if the applicant had lost his phone and this was the only means by which he could access his emails, the applicant was deemed to have received the invitation at the end of the day on 24 April 2018: the Act, s 441C(5). This is so whether or not the applicant actually was aware of the email or even opened it.

40. Accordingly, the fact that the applicant lost his phone does not amount to any reasonably arguable case of jurisdictional error on the part of the Tribunal.

41. The applicant also submitted that at the time of the hearing before the Tribunal he had family issues and financial issues. He stressed that he had to support his family in Malaysia as they were dependent on him. While the Court is of course sympathetic, this purports to explain why the applicant did not attend the hearing. The reason why the applicant did not attend the hearing is irrelevant to the Court in these circumstances on appeal.

42. The applicant finally pleaded with the Court to give him “a second chance” at the Tribunal.

43. None of the applicant’s oral submissions raise an arguable case of error on the part of the Tribunal.

    Ground 1

44. In proposed ground 1, the applicant claims that the Tribunal failed to consider “many vital” integers of the applicant’s claims. This is true. In fact, the Tribunal considered no integers of the applicant’s claims.

45. In the circumstances of this case, however, there was no error in the Tribunal doing so as the applicant had failed to attend the Tribunal hearing. The Tribunal proceeded pursuant to s 426A(1A)(b) of the Act. This allowed the Tribunal to dismiss the application without further consideration.

46. Accordingly, the Tribunal was not required to consider the integers of the applicant’s claims.

47. Ground 1 has no reasonable prospect of success.

    Ground 2

48. The applicant argues that the Tribunal deprived him of procedural fairness.

49. In relation to the Non-Appearance Decision:

    (a)the applicant was invited to attend a hearing before the Tribunal on 26 June 2018. That invitation contained all of the information required by s 425A(1), it was sent to the applicant’s nominated email address as per s 441A(5), it provided more than the minimum period of notice and it indicated that if the applicant failed to attend his application may be dismissed. The invitation complied with s 425A and thus met the first precondition to the exercise of the power under s 426A(1A); and

    (b)the applicant did not attend the hearing at the date or time specified. Accordingly, the second precondition to the exercise of the power under s 426A(1A) was satisfied.

50. With both preconditions to the exercise of s 426A(1A) having been satisfied, the Tribunal adhered to all procedural fairness requirements.

51. In relation to the Confirmation Decision:

    (a)the Tribunal produced the Non-Appearance Decision. This satisfied the requirements of s 426B(2);

    (b)the Tribunal sent the Non-Appearance Decision to the applicant at the last provided email address in connection with the review on the same date that the Non Appearance Decision was made: the Act, s 426B(5); and

    (c)the Non-Appearance Decision was accompanied by a statement and an information brochure which explained the effect of s 426A(1B)-(1F).

1. It is noted that, on 10 July 2018, the applicant gave a Change of Contact Details form to the Tribunal. That form included a new email address.  That email address differed from the email address the Tribunal had used when sending the Non-Appearance Decision. This development does not alter the fact that, at the time in question (i.e., when the Tribunal sent the Non-Appearance Decision), the “last email address provided… in connection with the review” was the email address to which the Tribunal sent the Non-Appearance Decision: Maroon v Minister for Immigration & Citizenship [2009] FCA 1284 at [36]. The fact that the applicant later updated the email address does not change the fact that, at the time in question, the Tribunal had acted in accordance with s 426B(5).

2. There is no merit in the applicant’s claim that he was denied procedural fairness.

3. Insofar as ground 2 can be interpreted to include a claim that the Tribunal acted “unreasonably”, there is no arguable case in that regard. Here:

   (a)the applicant was validly invited to the Tribunal hearing;

   (b)the Tribunal made attempts to send the applicant reminders of the hearing (to his mobile telephone number) but those reminders failed. This prevented the Tribunal from being able to contact the applicant by telephone as no alternative number had, at that time, been provided;

   (c)the applicant’s visa application was quite vague. The delegate noted that the applicant’s claims lacked sufficient detail and had no supporting evidence. Nonetheless, even though the application for review had been on foot at the Tribunal for over one year, the applicant had made no inquiries about the progress of his application.  Nor had he provided any supporting materials; and

   (d)there was nothing to suggest that the applicant intended to attend the hearing. In light of the level of disengagement shown with the process as a whole, the applicant’s failure to appear did not appear to be anything “exceptional” or out of the ordinary.

4. There is no arguable case that the Non-Appearance Decision is unreasonable.

5. Further, in relation to the Confirmation Decision, the Tribunal came to the only decision open to it: the Act, s 426A(1E).

6. Ground 2 has no reasonable prospect of success.

   Ground 3

7. The applicant states that the Tribunal relied on incorrect information and confused the applicant’s application with another case.

8. There is no basis for this ground. The invitation to attend the hearing was sent to the nominated email address of this applicant. The Non-Appearance Decision was sent to the same nominated email address of this applicant. The Tribunal sent reminder messages to the mobile telephone number relevant to this applicant.

9. All of the information that the Tribunal relied upon to communicate with the applicant was information he had provided in his application to the Tribunal or in his visa application. There was no incorrect information and the applicant was not confused with someone else.

10. Ground 3 has no reasonable prospect of success.

    Ground 4

11. Ground 4 (correctly) states that the Tribunal did not ask the applicant questions about the “types of harm”.

12. The Tribunal invited the applicant to attend a hearing where, no doubt, its intention was to ask the applicant questions about the “types of harm” he feared. However, the applicant failed to attend that hearing. Accordingly, he lost the opportunity to be asked any questions.

13. Ground 4 has no reasonable prospect of success.

    Ground 5

14. Ground 5 refers to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), which allows the applicant to appeal to this Court. It does not identify jurisdictional error. Rather, it appears to be an assertion about the applicant’s right to appeal and the basis upon which he believes this Court has jurisdiction.

15. It is not disputed that the applicant has a right to appeal to this Court. The applicant’s right to appeal to this Court is found in s 476 of the Act. However, that provision is qualified by s 477 of the Act which requires the application to be lodged within a specified time period.

16. The Court has no concerns that it has the necessary jurisdiction to consider the extension of time application and, if granted, the substantive application.

17. Ground 5 does not identify any arguable basis of error of the sort this Court can address when assessing whether an extension of time should be granted.

    Conclusion in Relation to the Merits of the substantive application

18. None of the applicant’s grounds of review identify any arguable basis of jurisdictional error.

19. The Court has, in its duty to the self-represented litigant, remained astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. It can identify no arguable grounds.

20. This weights against granting an extension of time.

    CONCLUSION

21. The substantial delay in filing the substantive application in this Court, the lack of a satisfactory explanation as to why that delay occurred and the lack of merit in the substantive application as a whole are such that it is not in the interests of the administration of justice for an extension of time to be granted.

22. The application for an extension of time is, accordingly, refused.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       3 March 2021