DBX17 v Minister for Immigration
[2018] FCCA 3277
•26 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBX17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3277 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause hearing – no arguable case – no basis for judicial review – application summarily dismissed. |
| Legislation: Migration Act 1958, s.412(1)(b) |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 |
| Applicant: | DBX17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1480 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 26 October 2018 |
| Date of Last Submission: | 26 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 26 October 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed 11 July 2017 is dismissed.
The applicant pay the first respondent’s costs in the proceeding fixed in the sum of $3 737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1480 of 2017
| DBX17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
By order of a registrar of this court made on 21 March 2018 this proceeding was ordered to go forward under the show cause regime prescribed by r.44.12 of the Federal Circuit Court Rules (“rules”). Under the show cause procedure, a judge hearing the application is possessed of a number of powers for the disposal of the case. If the judge is persuaded that no reasonably arguable basis for the application has been advanced the judge is empowered to dismiss the case at this stage.
Two cases at the highest level have indicated that an order for the summary dismissal of a proceeding should not be made lightly. The first is the decision of the High Court in Spencer v Commonwealth of Australia,[1] and the second is a decision of the Full Court of the Federal Court in AMF15 v Minister for Immigration and Border Protection.[2] I have proceeded in this case with those instructions firmly in mind. According to two other cases in the Federal Court, one being Siddique v Minister for Immigration and Border Protection[3] and the other being SZTTW v Minister for Immigration and Border Protection,[4] a court hearing a show cause application possesses a residual discretion not to summarily dismiss the case. Again, I have proceeded with those authorities in mind.
[1] (2010) 241 CLR 118
[2] [2016] FCAFC 68
[3] [2014] FCA 1352
[4] [2014] FCA 837
In this case the minister contended that the decision of the tribunal that it had no jurisdiction to hear the merits review was unimpeachably correct. I agree and now set out my reasons.
On 11 July 2017 the applicant applied in this court for judicial review of a decision made by the Administrative Appeals Tribunal on 15 June 2017 concerning a decision of the minister’s delegate made on 22 March 2017.
A little earlier, on 8 November 2016, the applicant applied for a protection visa. The minister’s delegate dealt with that application by refusing it on 22 March 2017.
The applicant had 28 days within which to seek merits review before the tribunal from the delegate’s decision. The 28-day period expired on 18 April 2017. The time limit within which the applicant had to apply to the tribunal was prescribed by s.412(1)(b) of the Migration Act (“Act”) and r.4.31(2) of the Migration Regulations (“regulations”). The timing requirements were mandatory in their terms. The legislation, whether primary or subordinate, gave no power to extend those times. Section 412(1)(b) and r.4.31(2) spoke in mandatory terms by the use of the word “must” in several instances.
In this case, the applicant filed her application for merits review on 19 April 2017, rather than 18 April 2017. She was one day late. Modest as that time slippage was, it was nevertheless a non-compliance with the prescription of the Act and the regulations. When the matter came before the tribunal it decided that it had no power to deal with the merits review because the merits review application had not been lodged within time.
The tribunal specifically took up with the applicant the lateness of the application and invited her to comment on whether a valid application had been made. The tribunal recorded in paragraph 5 of its reasons the response given by the applicant to the question posed by the tribunal. It is as well to record that paragraph in terms –
In an emailed response on 13 June 2017, the applicant stated that she was sorry for the late reply and explained that she could not recall the password for her email and that, as a security, she used her Malaysian mobile phone number. She stated that it took nearly two weeks to reset her email, and it was only after that time that she received the mail from the AAT and that her response was further delayed because of a public holiday.
That paragraph corresponded in large measure to the applicant’s responses to questions that I put to her today. She told me today that because of complications with her email she relied on the postal service to file her application for a merits review. That appears to have explained the fact that her application was filed outside of the time prescribed by the legislation. At first blush, it appeared to me that the legislation may work a hardship on applicants who are unfamiliar with the migration litigation process, especially those for whom English is not the first language.
Ms Bosnjak correctly drew to my attention a decision of the Flick J in the decision, SZQVV v MinisterImmigration and Border Protection.[5] That case is now over six years old, yet its authority remains as pertinent today as it has been for that matter. The proposition about there being no power to override the time limitations in the legislation has been the subject of other authority. Those decisions include Fernando v Minister for Immigration and Multicultural Affairs,[6] Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[7] and SZJMY v Minister for Immigration and Citizenship.[8]
[5] [2012] FCA 1471
[6] (2000) 97 FCR 407
[7] [2003] FCAFC 311
[8] [2008] FCA 708
Taken in combination, those authorities demonstrate that, notwithstanding the small amount of time involved the late filing, the provisions of s.412(1)(b) and r.4.31(2) are mandatory. It followed that the tribunal had no power to entertain the applicant’s merits review application by reason of its late filing. I have no power to extend time. It follows that the tribunal made no error in its decision.
Returning to the provisions of r.44.12 of the rules, it seemed to me that the applicant did not arise an arguable case for the relief she sought in this litigation. The minister was entitled to apply for the summary dismissal of this proceeding. It seemed to me that the order for the dismissal of this proceeding at a summary level was appropriate. It was appropriate for this application for summary dismissal to be brought, and I accede to it. In those circumstances, I dismiss this application for judicial review and order the applicant to pay the minister’s costs.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 14 November 2018
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