DBW22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 82
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DBW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 82
File number: MLG 2115 of 2022 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 8 February 2024 Catchwords: MIGRATION LAW – Application for review of a Registrar’s decision – review application filed out of time – Registrar’s decision to summarily dismiss Application and the Applicant pay the Minister’s costs – no reasons given for delay in applying for review or reasons why review is sought – whether an extension of time should be granted for review of Registrar’s decision – extension of time denied – substantive application has no reasonable prospects of success – order for costs Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254 and 256
Migration Act 1958 (Cth) s 477
Migration Regulations 1994 (Cth) r 4.31(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13 and 21.02(1)
Cases cited: Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886
Allison v Murphy [2021] FCAFC 232
DBW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 961
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submissions: 31 January 2024 Date of hearing: 31 January 2024 Place: Melbourne The Applicant: Appeared in person Solicitor for the First Respondent: Sparke Helmore Lawyers The Second Respondent: Submitted an appearance, save as to costs ORDERS
MLG 2115 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DBW22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
8 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Leave to file the Application for Review filed 21 December 2023 out of time is refused.
2.The Applicant pay the First Respondent’s costs, fixed in the sum of $1,000.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
On 18 December 2023, the Applicant lodged an Application for Review, which was accepted for filing by the Court on 21 December 2023 (Review Application). The Review Application seeks review of an exercise of power by a Judicial Registrar of this Court, pursuant to Division 21.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules).
The relevant exercise of power were Orders made by a Judicial Registrar on 16 November 2023 (Registrar’s Orders) which summarily dismissed the Applicant’s Application, filed on 19 September 2022 (Substantive Application), and ordered that the Applicant pay the costs of the First Respondent (Minister) fixed in the sum of $4,189.38.
The hearing of the Review Application took place at the Melbourne Registry of the Court on 31 January 2024 (Review Hearing). At the conclusion of the Review Hearing, judgment was reserved. These are the Reasons for Judgment in relation to the Review Hearing.
ISSUES IN DISPUTE
The issues to be determined in this matter are as follows:
(a)Whether leave should be granted for the Applicant to file the Review Application out of time; and
(b)If leave is granted to file the Review Application out of time, whether the Review Application should be allowed.
SYNOPSIS
The Court has determined that:
(a)Leave to file the Review Application out of time is refused on the basis that the Substantive Application has no reasonable prospects of success;
(b)The Registrar’s Orders remain in full force and effect; and
(c)The Applicant pay the Minister’s costs of the Review Application, fixed in the sum of $1,000.
BACKGROUND
The Applicant is a Malaysian national of Chinese ethnicity who arrived in Australia on 27 May 2018.[1]
[1] Court Book (CB) 8.
On 7 August 2018, the Applicant applied for a Protection (subclass 866) visa (Visa Application), stating, inter alia, that he left Malaysia because he is ‘gay and this is not acceptable in Malaysia, a Muslim country’.[2]
[2] CB 11.
On 1 December 2021, the Department of Home Affairs (Department) sent an email to the Applicant requesting that he attend an interview in relation to the Visa Application on 21 December 2021.[3] The Applicant failed to respond to the interview request nor appear at the scheduled interview.[4]
[3] CB 30-32.
[4] CB 39-40.
On 3 May 2022, the Department notified the Applicant by email that the Visa Application was refused (Delegate’s Decision).[5] The Delegate’s Decision was made on the basis that the Applicant was not a person in respect of whom Australia has protection obligations as provided for in ss 36(2)(a) or 36(2)(aa) Migration Act 1958 (Cth) (Migration Act), as his protection claims were found to be unsubstantiated and without credibility.[6]
[5] CB 34-42.
[6] CB 40-41.
On 31 May 2022, the Applicant applied to the Second Respondent, the Administrative Appeals Tribunal (Tribunal) for review of the Delegate’s Decision (Tribunal Review Application).[7] The Applicant was notified on 16 June 2022 by email from the Tribunal that the Tribunal Review Application was filed one (1) day out of time, and invited the Applicant to comment on the validity of the Tribunal Review Application.[8] The Applicant did not do so.
[7] CB 53-59.
[8] CB 64-66.
On 16 August 2022, the Tribunal notified the Applicant by email of its decision, made on the same day, that the Tribunal does not have jurisdiction to review the Tribunal Review Application (Tribunal’s Decision).[9] The Tribunal’s Decision noted that the statutory deadlines under the Migration Act are ‘strict and clear’, and that the Tribunal does not have the power to extend them.[10]
PROCEEDINGS BEFORE THE COURT
[9] CB 69-73.
[10] CB 72, [6].
Substantive Application
On 19 September 2022, the Applicant filed the Substantive Application, together with an Affidavit sworn 6 September 2022.
The Substantive Application contained three (3) grounds of review, as follows:[11]
1. There exists unfairness in my case. (Ground 1)
2. Tribunal member did not consider whether the immigration office handled my case properly. (Ground 2)
3. Tribunal member handled my case with bias and not consider there was a high potential harm to me if I returned to Malaysia. (Ground 3)
(Words in bold added, otherwise without alteration)
[11] Application-Migration Act, filed 19 September 2022, ‘Grounds of application, [1]-[3]
On 28 September 2022, the Minister filed a ‘Response – General Federal Law’ seeking an order dismissing the Substantive Application pursuant to r 13.13 of the 2021 Rules, on the basis that it has no reasonable prospects of success (Response). Written submissions in support of this position were filed by the Minister on 11 October 2023 (Minister’s Submissions), pursuant to Orders of a Registrar of this Court made on 6 December 2022.[12]
[12] Orders of Registrar Carney made on 6 December 2022, Order 6.
On 18 October 2023, the Minister filed an Affidavit of Jack Mangos, a solicitor employed by the Minister’s lawyers (18 October 2023 Mangos Affidavit). The 18 October 2023 Mangos Affidavit annexed correspondence from the Minister’s lawyers to the Applicant by registered post and email, forwarding a copy of the Court Book and the Minister’s Submissions, and advising that the matter was listed for an interlocutory hearing on 25 October 2023 by videoconference.
On 25 October 2023, the matter was heard by a Registrar of this Court for a hearing of the Minister’s application for summary dismissal of the Substantive Application. Both the Applicant and a solicitor from the Minister’s lawyers attended the hearing by videoconference. On 25 October 2023 the Registrar made Orders for the filing of further written submissions by the parties and adjourning the hearing to a later date.[13] These Orders were made as a consequence of the Applicant having raised issues at the hearing which the Minister’s representative was not on prior notice of.
[13] Orders of Registrar Cummings made on 25 October 2023, Orders 1-3.
The Minister filed supplementary written submissions on 3 November 2023 (Minister’s Supplementary Submissions). The Applicant did not file any further material.
On 16 November 2023, the Minister’s application for summary dismissal was heard by a Registrar of this Court. The Applicant, with the assistance of a Mandarin interpreter, appeared self-represented by videoconference, as well as a solicitor from the Minister’s lawyers. Judgment was reserved in respect of the summary dismissal application.[14]
[14] Orders of Registrar Cummings made on 16 November 2023, Order 1.
Later on the same day, 16 November 2023, the Registrar made the Registrar’s Orders in Chambers, together with written Reasons for Decision in DBW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 961 (Registrar’s Reasons for Decision).
I note the following relevant observations of the Registrar in the Registrar’s Reasons for Decision:
(a)The Registrar was satisfied that the Applicant does not have reasonable prospects of successfully prosecuting the Substantive Application;[15]
[15] DBW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 961 (Registrar’s Reasons for Decision), [3].
(b)In respect of Ground 2, the Registrar was satisfied that the Tribunal’s conclusion as to its lack of jurisdiction was correct;[16]
(c)The ‘unfortunate and unavoidable reality’ was that the Applicant lost his right to have the Tribunal review the Delegate’s Decision because he lodged the Tribunal Review Application with the Tribunal late;[17]
(d)In respect of Ground 1, the Registrar considered that the Applicant does not have reasonable prospects of successfully establishing that the Tribunal deprived him of procedural fairness because:[18]
(i)The Applicant had not made an application which engaged the Tribunal’s jurisdiction; and
(ii)The Tribunal’s invitation to the Applicant sent on 16 June 2022 discharged any common law procedural fairness obligations owed to him;
(e)In respect of Ground 3, the Registrar noted that ‘[t]he bias complaint…does not enjoy reasonable prospects of success because it rests on the false premise that the Tribunal was obliged to undertake an assessment of the applicant’s protection claims’;[19]
(f)The Registrar was satisfied that the email including the notification letter and the Delegate’s Decision were transmitted to the Applicant’s authorised Gmail address on 3 May 2022 at 11:56:42,[20] and that ‘the factual dispute concerning transmission is not a triable issue’;[21] and
(g)The Court is bound to follow the judgment of Chief Justice Allsop in CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437, which contains pertinent facts ‘analogous’ to those in the present matter.[22]
[16] Registrar’s Reasons for Decision, [18].
[17] Registrar’s Reasons for Decision, [19].
[18] Registrar’s Reasons for Decision, [20].
[19] Registrar’s Reasons for Decision, [21].
[20] Registrar’s Reasons for Decision, [26]; Affidavit of Kristina Petrovski affirmed and filed 3 November 2023, Annexure KP1.
[21] Registrar’s Reasons for Decision, [27].
[22] Registrar’s Reasons for Decision, [34]-[36].
Review Application
The Review Application was accepted for filing on 21 December 2023, seeking review of the Registrar’s Orders. The Review Application was lodged out of the 7-day timeframe required by r 21.02(1) of the 2021 Rules, even where the date of lodgement by the Applicant of 18 December 2023 is considered.
The Review Application reads as follows, relevantly:
Details of orders sought to be reviewed
I am seeking to review the order made on 16 November 2023 by Registrar Cummings.
Orders sought
1. Set aside the order made by Registrar Cummings.
2. The decision made by the Tribunal should be quashed.
3. The applicant’s case should be remitted to the Tribunal for reconsideration.
(Without alteration)
On 18 December 2023 the Applicant also lodged an Affidavit, affirmed 14 December 2023 which was accepted for filing on 21 December 2023 (Applicant’s Affidavit). The Applicant’s Affidavit contains minimal information save for confirming that the Substantive Application was summarily dismissed by a Registrar and annexing a copy of the Registrar’s Orders.
EVIDENCE AND SUBMISSIONS
The Applicant appeared in person at the Review Hearing, assisted by a Mandarin interpreter. The Applicant appeared confused as to the reasons for the hearing and was provided with a physical copy of the Review Application, the Applicant’s Affidavit and the Court Book.
The Court confirmed with the Applicant the documents filed by the Applicant that it had before it, as well as reiterating the contents of the Registrar’s Orders. The Court advised the Applicant that the Review Application was filed out of time and asked whether he had any explanation for the delay in filing, as well as whether he had any submissions to make relating to the grounds of review in the Substantive Application. The Applicant stated the following at the Review Hearing:
(a)‘I do not know English. I have been trying to ask my friend to assist me in this application;[23]
(b)‘I wish I could be given a visa to continue to stay in Australia’;[24] and
(c)‘In the past, I provide a different email address, which was my friend’s email address. I genuinely didn’t receive the first correspondence’.[25]
[23] Transcript P3:L35-36.
[24] Transcript P4:L21-22.
[25] Transcript P8:L1-2.
At the Review Hearing, the Minister confirmed reliance upon: the Response; the Minister’s Submissions; the Minister’s Supplementary Submissions; and an Affidavit of Kristina Petrovski, affirmed and filed 3 November 2023 (Petrovski Affidavit).[26]
[26] Transcript P4:L31-P5:L13.
The Court has also had regard to the material contained within the Court Book and the transcript of the Review Hearing.
APPLICABLE LEGAL PRINCIPLES
In accordance with s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), parties may apply for review of an exercise of power by a delegate under s 254 of the FCFCOA Act.
Pursuant to r 21.02(1) of the 2021 Rules, applications for review of an exercise of power by a Registrar must be made within seven (7) days. This timeframe may be extended by the Court on any terms that it thinks fit, or with the consent of the parties: r 21.02(2) of the 2021 Rules. There are, however, no prescribed statutory criteria to inform the discretion to extend time.
The factors of relevance in determining whether to exercise the discretion to extend time in the context of applications for judicial review under s 477 of the Migration Act are informative. They include: the length of the delay; any explanation or reasons for the delay; prejudice to the respondent or third parties; and the merits of the underlying application.
The Court must be satisfied that an extension of time is not only desirable, but that it is needed in the administration of justice: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Katoa) at [12].
The level of consideration that is given to the assessment of the merits of the proposed grounds is a matter for the Court: Katoa at [19]. It has been held that in determining whether to grant an extension of time to file such an application, the prospects of success of the substantive application ought to be considered within the broader assessment of the interests of justice, so as not to render the extension of time futile: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9].
In accordance with r 21.04(1) of the 2021 Rules, the hearing of an application for review of an exercise of power by a Registrar such as the Review Application, is to proceed as a ‘hearing de novo’. The Court may receive evidence of any affidavit or exhibit tendered before the Registrar and may with leave receive further evidence: r 21.04(2)(a) and (b) of the 2021 Rules; Allison v Murphy [2021] FCAFC 232 at [11]; Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886 at [19].
CONSIDERATION
Should leave be granted to file the Review Application out of time?
Length and explanation for delay
The Review Application was lodged by the Applicant on 18 December 2023, 25 days out of time. It was accepted for filing by the Court on 21 December 2023, a further three (3) days out of the time required by r 21.02(1) of the 2021 Rules.
No explanation or reasons for the delay were provided by the Applicant in the Review Application, the Applicant’s Affidavit, or by the Applicant at the Review Hearing.
The Solicitor for the Minister made submissions at the Review Hearing that there has been a lack of explanation, or insufficient explanation, provided by the Applicant as to the delay in filing the Review Application.[27] It was also submitted, and with which I agree, that it is the responsibility of the Applicant to be aware of his review rights.[28]
[27] Transcript P6:L13-16.
[28] Transcript P6:L16-17.
The Court considers that there has been a complete absence of any explanation by the Applicant for the delay in filing the Review Application out of time. Such an absence goes against the Applicant in determining whether the Court should extend time.
Prejudice to the Minister
The Minister submitted at the Review Hearing that there would be no specific prejudice to the Minister if leave were to be granted for the filing of the Review Application out of time, save for the finality of administrative decision-making.[29]
[29] Transcript P6:L17-18; L26-27.
I accept that no prejudice would be brought upon the Minister were time extended for the filing of the Review Application.
Prospects of Success of the Substantive Application
Once again, the Applicant did not address in the Review Application, the Applicant’s Affidavit or at the Review Hearing, the prospects of success or merits of the Substantive Application, nor why he sought review of the Registrar’s Orders.
In order to assess whether the Substantive Application has reasonable prospects of success, it is necessary to consider the grounds of review therein.
Ground 1
The Court takes Ground 1 of the Substantive Application to be an assertion by the Applicant of issues of procedural fairness with his matter as it was before the Tribunal.
As submitted by the Solicitor for the Minister, the Tribunal only considered whether it had jurisdiction to review the Delegate’s Decision and as this was answered in the negative, the Tribunal’s procedural fairness obligations were not engaged.[30]
[30] Transcript P6:L36-40.
To the extent that the Tribunal was required to provide common law procedural fairness to the Applicant, the Solicitor for the Minister submitted that it did so by virtue of inviting the Applicant to comment on the validity of the Tribunal Review Application on 16 June 2022.[31]
[31] Transcript P6:L39-44; CB 64-66.
As discussed at paragraph [10] of these Reasons for Judgment, the Applicant was notified by email on 16 June 2022 that the Tribunal Review Application was filed one (1) day out of time. The Applicant was then invited to comment on the validity of the Tribunal Review Application, with the Tribunal specifically stating as follows:
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 30 June 2022. Your application, with any comments you make, will then be referred to a Member to make a decision on your application.
(Without alteration)
The Court considers there to be no reasonable prospects of success of Ground 1 of the Substantive Application, as the Tribunal’s procedural fairness obligations to the Applicant were plainly not enlivened in circumstances where it correctly considered that it had no jurisdiction to review the Delegate’s Decision and the Applicant had not taken up the opportunity to comment.
Ground 2 and 3
Grounds 2 and 3 of the Substantive Application take issue with the Tribunal’s consideration of the Department’s handling of his case and contends that the Tribunal was affected by bias and failed to consider ‘there was a high potential harm to [him] if I returned to Malaysia’.
The Solicitor for the Minister submitted that the Tribunal in fact did not conduct merits review of the Tribunal Review Application and did not consider whether the Applicant was a person whom Australia owed protection obligations.[32] Rather, the Tribunal’s only task was to determine whether or not it had jurisdiction to review the Delegate’s Decision under the Migration Act, which it ultimately decided it did not, due to the ‘strict’ statutory time period.
[32] Transcript P7:L4-6.
The Tribunal confirmed that the Delegate’s Decision was transmitted to the Applicant’s authorised email address on 3 May 2022.[33] The Petrovski Affidavit also annexes a screenshot of the Applicant’s ‘IMMI’ account, wherein it can be observed that the Delegate’s Decision was sent by the Department to the Applicant on 3 May 2023 at 11:56:42.[34] I am satisfied that no issue arises with respect to the transmission date, this being the date that the prescribed timeframe commenced. The Applicant’s submissions that he did not receive the Department’s email does not hold any weight in circumstances where the email was clearly sent to his authorised email address at this time.
[33] CB 72, [5].
[34] Affidavit of Kristina Petrovski affirmed and filed 3 November 2023, Annexure “KP1”.
The Tribunal was satisfied that as the Applicant had been validly notified of the Delegate’s Decision on 3 May 2022, his application for review by the Tribunal was therefore filed out of the prescribed statutory timeframe in reg 4.31(2) of the Migration Regulations 1994 (Cth). I am satisfied that such a conclusion by the Tribunal was correctly made, as was its subsequent finding that there was no discretion that empowered it to extend the prescribed timeframe.
In circumstances where the Tribunal Review Application was received by the Tribunal out of time, the Tribunal did not have jurisdiction to hear the matter. I consider the Tribunal’s response to the receipt of the Tribunal Review Application to have been appropriate in the circumstances.
The fact that the Tribunal did not consider the potential harm to the Applicant should he return to Malaysia does not send the Tribunal into error. It was not obligated to consider the merits or substance of the Tribunal Review Application, and indeed it was prevented from doing so by virtue of the Tribunal lacking jurisdiction.
The Court agrees with the comments in the Registrar’s Reasons for Decision as to the Applicant’s assertion of bias by the Tribunal, namely that such an assertion rests on the ‘false premise’ that the Tribunal was obliged to undertake review of his protection claims.[35]
[35] Registrar’s Reasons for Decision, [21].
The Court considers that Grounds 2 and 3 of the Substantive Application do not have any reasonable prospects of success.
CONCLUSION
The Court does not consider it to be in the interests of the administration of justice to extend the time for the Applicant to file of the Review Application. This is so due to the complete lack of explanation provided by the Applicant for the delay and the Substantive Application having no reasonable prospects of success.
At the Review Hearing, the Minister confirmed that costs against the Applicant were sought in the amount of $1,000.[36] I am satisfied that such an amount is appropriate in the circumstances and an Order will be made accordingly.
[36] Transcript P7:L35.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge C. E. Kirton KC Associate:
Dated: 8 February 2024
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