Dax17 v Minister for Immigration

[2018] FCCA 3289

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAX17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3289

Catchwords:
MIGRATION – Application to review decision of Registrar dismissing substantive application – application for extension of time – no satisfactory explanation for delay – lack of merit in substantive application – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.4.31(2), 13.03C(1)(c) and 20.01(1)(b)
Migration Act 1958 (Cth), ss.412(1)(b), 494B(5) and 494C(5)

Cases cited:

DZAFH v Minister for Immigration and Border Protection & Anor [2017] FCCA 387

DZAFH v Minister for Immigration and Border Protection & Anor [2017] FCA 984

Applicant: DAX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 274 of 2017

Judgment of: Judge Heffernan

Hearing date: 22 October 2018

Date of Last Submission: 22 October 2018

Delivered at: Adelaide

Delivered on: 19 November 2018

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Evans

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application for an extension of time in which to review the order of Registrar Colbran dated 22 June 2018 is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the amount of ONE THOUSAND, EIGHT HUNDRED AND THIRTY TWO DOLLARS ($1,832).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 274 of 2017

DAX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 22 June 2018, a Registrar of this Court dismissed these proceedings pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (‘the Rules’) because the applicant failed to attend at a callover.  The Registrar also ordered that the applicant pay the costs of the first respondent in a fixed amount.

2. I have before me an application to extend time in which to make an application for review of the dismissal of these proceedings under r.20.02 of the Rules. The timeframe provided for in r.20.01(1)(b) for an application of this kind is seven days. This application was filed 12 days outside of that timeframe. Accordingly, the applicant must establish that it is in the interests of justice for me to extend the time in which to seek review of the Registrar’s decision.

3. The applicant appeared before me unrepresented.  Her application for review sets out the following orders:

   “1.I want to request extension in which to seek the orders.

   2.To cancel orders given by registrar and reconsider my application.

   3.To cancel Administrative Appeals Tribunal.”

   (re-produced verbatim)

4. The applicant relies on an affidavit which states briefly:

   “I was not able to come for hearing on 22/06/2018 as I did not have enough money to come to Adelaide.  I am not earning and am dependant.  I did not have enough money to come to Adelaide.  Kindly give me chance so I can come to Adelaide and present my case.  I want to request extension in which to seek the orders as I am out of time.  Kindly consider my request and accept my application.”

5. I take the view that the affidavit relied on by the applicant contained very little detail as to why the application for review was filed out of time.  I invited the applicant to give brief evidence on that matter.  As best I understand the evidence she gave, the applicant appeared to suggest that she made some phone calls and simply got the dates wrong. 

6. In considering whether or not to extend time in circumstances such as this, it is necessary for the Court to consider the length and the reasons for the delay, and in particular, whether any satisfactory explanation has been given for the delay, and the merits of the substantive proceedings which underpin the application.

7. It is also necessary to consider whether there is any prejudice to the respondent if an extension of time were to be granted.  The first respondent has quite properly conceded that it would not suffer any particular prejudice if the extension of time were to be granted other than a prejudice which might be addressed by an order for costs.  The lack of prejudice to a respondent is a significant matter, but is not determinative. 

8. The respondent submits that the Court should refuse to extend time because the explanation proffered by the applicant for the delay is insufficient and because her substantive application lacks merit.  I am not satisfied that the explanation given by the applicant amounts to a satisfactory explanation for the delay in this matter.

9. The time limit stipulated by the Rules is obviously and purposefully short.  It is clearly designed to expedite applications of this kind.  However, I am of the view that the application to extend time faces a more significant hurdle.  The substantive application for judicial review alleges jurisdictional error on the part of the Tribunal.  The Tribunal concluded that it did not have jurisdiction to hear her application for review dated 20 June 2017.  The reason that it did not have jurisdiction to hear her application for review is that the application for a merits review was filed out of time.

10. The applicant was notified of the delegate’s decision on 21 September 2016 consistent with the obligations created under s.494B(5) of the Migration Act 1958 (Cth) (‘the Act’). Section 494C(5) of the Act deemed that the applicant had received notification on the date that it was sent. The time period for lodging her application for review ran from the day of notification.[1]

    [1]     Regulation 4.31(2) Migration Regulations 1994 (Cth).

11. This meant that the applicant had to file her application for review within 28 days of 21 September 2016. When the matter came before the Tribunal, it identified, correctly in my view, that the last date to lodge the application for review was 18 October 2016. Regrettably for the applicant, she lodged her application for review on 19 October 2016. This was outside the timeframe imposed by s.412(1)(b) of the Act. As a result, the Tribunal did not have jurisdiction to review the matter. This question was dealt with by this Court in DZAFH v Minister for Immigration and Border Protection & Anor.[2]  That decision was later upheld by the Federal Court on appeal: DZAFH v Minister for Immigration and Border Protection & Anor.[3]

    [2]     DZAFH v Minister for Immigration and Border Protection & Anor [2017] FCCA 387.

    [3]     DZAFH v Minister for Immigration and Border Protection & Anor [2017] FCA 984.

12. The effect of the decision is that an application which is not lodged within the prescribed time period is not valid, and the Tribunal lacks jurisdiction to review an out of time application.

13. For the above reasons, I take the view that apart from the lack of a satisfactory explanation for the period of delay on the part of the applicant in filing the review application, the substantive application which she seeks to pursue before this Court has no merit.  In those circumstances, it would be futile to grant an extension of time on an application for judicial review that has no reasonable prospects of success.  For that reason, I decline to extend time in which to make the application for review.

14. I dismiss the application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 19 November 2018