Dema v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 881
•4 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dema v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 881
File number: PEG 28 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 4 October 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – extension of time – moderate delay – no prejudice – inadequate explanation – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 362B, 379A, 379C, 477 & 494C
Migration Regulations 1994 (Cth), cll 500.211 and 500.311 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 107 Date of hearing: 20 September 2023 Place: Perth Applicants: Applicants appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 28 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PHUNTSHO DEMA
First Applicant
JAMBAY RINCHEN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
4 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) (as amended on 14 September 2023) be dismissed.
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
JUDGE KENDALL:
BACKGROUND
The first and second applicants are citizens of Bhutan (Court Book (“CB”) 2-7 & 27). They are wife and husband (respectively) (CB 5) and arrived in Australia as holders of student visas (granted on 23 January 2019) (CB 15-16).
On 15 March 2021, the first applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) (CB 1-21). The second applicant was included in that visa application as a member of his wife’s family unit (CB 6-7). Supporting documents were also provided with the visa application (CB 22-86). In that visa application, the first applicant provided her own email address and agreed to receiving electronic communication from the Department of Home Affairs (the “Department”). She also answered “no” to the question of whether she authorised another person to receive correspondence on her behalf in relation to her visa application (CB 7-8).
On 29 June 2021, the Department wrote to the applicants requesting more information in relation to the visa application (CB 87-97).
No response was received by or on behalf of the applicants (CB 98).
On 5 November 2021, the Department invited the first applicant to comment on information in relation to the visa application (CB 98-100). Specifically, that invitation letter provided as follows (CB 98-99):
Provider Registration and International Student Management System (PRISMS) indicates that the Confirmation of Enrolment for Graduate Diploma of Management (Learning) has not been issued and does not appear in PRISMS.
As such, I have concerns that you are not enrolled in a course of study and may not meet the criteria in clause 500.211 of the Migration Regulations.
You may provide comment on this information and/or provide evidence of a valid COE.
You must respond to this request within 28 days after you are taken to have received this letter. You should provide your response in writing.
No response was received from or on behalf of the applicants (CB 107).
On 17 June 2022, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 106-109). The delegate found that the first applicant had not provided a valid confirmation of enrolment (“COE”). The delegate was thus not satisfied that the first applicant met the requirements set out in cl 500.211 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 107). The delegate also found that the second applicant did not meet cl 500.311 in Schedule 2 of the Regulations (CB 109).
On 7 July 2022, the first applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 110-115). In that review application, the first applicant answered “no” to the question of whether she had appointed a representative to assist her with the review and provided her email address for correspondence with the Tribunal (CB 111-112).
Later that same day (7 July 2022), the Tribunal wrote to the first applicant (via email) and noted that she had not included the second applicant in her review application. The Tribunal asked the first applicant to complete an additional form to include her husband in the review application (CB 116).
The first applicant provided the completed form (including the second applicant) to the Tribunal via email on 8 July 2022 (CB 117-131).
On 12 July 2022, the Tribunal invited the applicants (via email) to provide information in relation to their review application (CB 135-136). The invitation letter provided as follows (CB 136):
You are requested to provide the following information:
•Please provide evidence of a valid Confirmation of Enrolment in an acceptable course of study, in order to meet the criteria in clause 500.211 of the Migration Regulations.
Please provide this information, in writing, by 12 August 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you are unable to provide the requested information by 12 August 2022, you should contact us before this date.
On 12 August 2022, the first applicant contacted the Tribunal (via email) and requested an extension of time to 30 August 2022 to submit a COE (CB 137-139). That extension of time was granted on 15 August 2022 (CB 140).
No COE was provided by the applicants.
On 2 September 2022, the Tribunal wrote to the applicants again (via email) in relation to the requested COE. That correspondence relevantly provided as follows (CB 141):
You previously advised the Tribunal that you would provide evidence of a valid Confirmation of Enrolment in an acceptable course of study, to meet the criteria in clause 500.211 of the Migration Regulations, by 30 August 2022.
The Tribunal has not received this evidence from you. Please provide this now.
No response was received from or on behalf of the applicants.
On 10 October 2022, the Tribunal attempted to call the first applicant to follow up on the provision of the COE. The Tribunal case notes reference that telephone call as “going to redirect with no VM facility” (CB 181).
On 14 October 2022, the Tribunal invited the applicants (via email) to attend a hearing before it (by telephone) on 31 October 2022 (CB 142-145).
On 19 October 2022, the Tribunal notified the applicants (via email) that the hearing had been postponed (CB 146-147).
On 31 October 2022, the Tribunal invited the applicants (via email) to attend a hearing before it (by telephone) on 18 November 2022 (CB 148-156).
On 11 November 2022 and 17 November 2022, SMS hearing reminder messages were sent to the applicants (using the mobile phone number included in their review application). Tribunal case notes record those SMS messages as reading (CB 182):
The message sent was:
Reminder - Your AAT hearing is on 18/11/22. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
The Tribunal attempted to contact the applicants via telephone on various occasions on the date of the hearing. Tribunal case notes record the attempted telephone calls as follows (CB 182):
The PRA did not answer her phone for the hearing today- 18/11/2022.
Calles were made at via Avaya and MS Teams @09:36am, 09:48, 10:00, 10:05 to the listed number of – [mobile phone number omitted] rings a few times then cuts out.
The member declared It a NO SHOW @10:05am.
The applicants did not attend the hearing scheduled for 18 November 2022 (CB 157-159).
On 18 November 2022, the Tribunal dismissed the application for non-appearance pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) (the “Non-Appearance Decision”) (CB 163). The applicants were notified of that decision (and advised of their right to apply for reinstatement) by letter sent that same day via email (being on 18 November 2022) (CB 160-162). That letter stated (CB 161):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 2 December 2022. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
Attached to the Tribunal’s correspondence was an information sheet which also included detailed information about how the applicants could seek reinstatement of their review application (CB 164-165).
The applicants did not seek reinstatement (CB 169).
On 5 December 2022, the Tribunal confirmed the Non-Appearance Decision made on 18 November 2022 (the “Confirmation Decision”) (CB 168-169). By virtue of s 362B(1F) of the Act, the delegate’s decision was taken to have been affirmed.
On 27 January 2023, the first applicant wrote to the Tribunal (via email) in relation to the dismissal of her application and requested reinstatement (CB 172-173). That email correspondence provided as follows (without alteration) (CB 172):
I am writing this mail in regard to the dismissal of my case, I thought I had already submitted the reinstatement application and was waiting for some sort of confirmation or mail. I only came to know that my visa was no longer active since the case was dismissed. I am just very shocked to come to know about it in this way. I know I must have missed my only opportunity to appeal again. Which I really want to since this would be my life time opportunity.
I would be grateful if there is any way I can reinstate my application. I want to complete my studies before I leave the country.
On 30 January 2023, the Tribunal replied to the first applicant (by letter sent via email) advising as follows (CB 174-175):
We received your submission dated 27 January 2023.
The Submission was forwarded to the Member and your request was carefully considered. However, the Member has decided not to reopen this case.
We made our decision in this case on 5 December 2022. Once we have made a decision under the Migration Act 1958, we have no power to take any further action on the review.
We are not in a position to assist you any further on this issue.
Later that same day (also on 30 January 2023), the first applicant wrote to the Tribunal (via email) asking if she could “appeal” to a “higher court in this case”. The Tribunal directed the first applicant to this Court (CB 176-180).
On 2 March 2023, the applicants applied to this Court for judicial review of the Tribunal’s Confirmation Decision. Unfortunately, that application was filed outside of the 35-day time limit specified in s 477 of the Act. Accordingly, the applicants require an extension of time to pursue the substantive proceeding in this Court.
For the reasons that follow, the Court has determined that an extension of time should not be granted.
PROCEDURAL ISSUES
The materials before the Court include the application for an extension of time filed by the applicants on 2 March 2023, the affidavit of the first applicant (initially sworn on 2 February 2023 and re-sworn on 2 March 2023 and filed in this Court on 2 March 2023), a court book numbering 182 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 30 August 2023 and the affidavit of service of Benjamin Mayne affirmed and filed on 1 September 2023.
The Court notes that on 10 July 2023, procedural orders were made by Registrar Downing of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions. No further materials were filed by or on behalf of the applicants.
The applicants appeared at an initial hearing before this Court on 14 September 2023 without legal representation. The first applicant spoke on behalf of herself and her husband and confirmed that the applicants had received the Court Book and the Minister’s written submissions.
The Court also noted that the applicants had not sought review of the Non-Appearance Decision. Rather, they had only asked for a review of the Confirmation Decision. The Court explained to the applicants why this was an issue and, with the first applicant’s consent, made an order amending the application for judicial review to also include the seeking review of the Non-Appearance Decision.
Noting that the applicants were not legally represented, the Court also explained to them that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decisions.
In this matter, the Tribunal’s Non-Appearance and Confirmation Decisions are dated 18 November 2022 and 5 December 2022 respectively. The dates by which the applicants were required to file their application in this Court were 23 December 2022 (in relation to the Non-Appearance Decision) and 9 January 2023 (in relation to the Confirmation Decision). Unfortunately, the applicants did not file their substantive application until 2 March 2023. Hence, the delays here are 69 days in relation to the Non-Appearance Decision and 52 days in relation to the Confirmation Decision.
The Court explained that, despite the late filing of a substantive application for judicial review, applicants can ask the Court for an extension of time within which to file their substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicants requested an extension of time in writing and provided “grounds” explaining why they believe that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting that the applicants appeared without any legal assistance, the Court explained to them that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391.
The Court invited the first applicant to address each of the factors outlined above and highlight anything that she considered relevant to the applicants’ request for an extension of time. The first applicant’s responses are discussed in the consideration that follows.
At the end of the first hearing, the first applicant told the Court that she had in fact written a reinstatement request and sent it to the Tribunal. The first applicant explained that after writing that request, she scanned it with her phone and then emailed the request to the Tribunal. However, later when the first applicant spoke with the Tribunal about that request for reinstatement, the Tribunal claimed that they could not find any such request.
In the circumstances, the Court gave the applicants time to file a copy of the reinstatement application referenced above (in the first applicant’s oral submissions before this Court and also referenced in the judicial review application filed by the applicants on 2 March 2023). The Court also adjourned the hearing to allow the applicants time to do so.
On 18 September 2023, the first applicant sent an email to my chambers with two documents attached.
When the matter came back before this Court (on 20 September 2023), those documents were discussed with the first applicant and tendered and referenced as Exhibit 2. The materials contained in Exhibit 2 will be discussed further by the Court when considering the applicants’ “grounds of review” below.
CONSIDERATION
Length of Delay
As outlined above (at [37]), the delays in this matter are 69 days in relation to the Tribunal’s Non-Appearance Decision and 52 days in relation to the Tribunal’s Confirmation Decision.
In the Court’s view, the delays here are moderate, but not significant.
This weighs in favour of granting the applicants the extension of time.
Prejudice
It was conceded by Minister’s representative (at [33] in written submissions filed in this Court on 30 August 2023) that the Minister does not face any significant prejudice.
This also weighs in favour of granting an extension of time.
Explanation for the Delay
In this matter, the applicants’ “grounds” for an extension of time provide as follows (without alteration):
1.emailed reinstatement application to AAT which never went through so I had no idea that my case was still at AAT but unfortunately it was dismissed.
2.I was not aware of the situation which is my fault as well but if I had known I would have applied sooner.
The applicants’ statement that a request for reinstatement was emailed to the Tribunal (but not received) will be considered below when the Court reviews the merits of the substantive application.
The applicants also claim that they were not aware of the “situation”. To the extent that the applicants are saying that they were not aware of the Tribunal’s Confirmation Decision, the Court disagrees for the reasons that follow.
On 5 December 2022, the Tribunal notified the applicants of the Confirmation Decision by letter (also dated 5 December 2022 and sent to the first applicant via email, using the email address provided by her in the review application) (CB 166-167). With that notification letter, the applicants were also provided with a fact sheet which included information about how the applicants could seek review of the Tribunal’s decision (CB 170-171).
That fact sheet relevantly provided (CB 171):
If you think that our decision is wrong in law, you may consider seeking judicial review in the Federal Circuit and Family Court of Australia. If you wish to apply for review, you must do so within 35 days of the date of our decision.
The Tribunal is permitted to communicate with an applicant via email pursuant to s 379A(5)(b) of the Act.
By virtue of s 379C(5) of the Act, an applicant is deemed to have received a document at the end of the day on the date that it was sent to the email address provided by that applicant (to the Tribunal) in relation to their review application. By sending the document by one of the methods set out in s 379A of the Act, the applicants are taken to have received that document at the time specified in s 379C of the Act (in this case, at the end of the day that it was sent by email), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J (in relation to s 494C of the Act, which is in similar terms).
Hence, the applicants in this matter are deemed to have received notification of the Tribunal’s Confirmation Decision at the end of the day on 5 December 2022 (being the date on which the email was sent to the first applicant by the Tribunal) (CB 166-167).
The applicants also suggest that they were not aware of “how” they could seek review of the Tribunal’s decisions. This concern is echoed in the first applicant’s oral submissions before this Court.
The Court sympathises with the applicants in this regard. The migration system and Court processes can be (and all too often are) confusing for self-represented litigants. Ignorance, however, is no excuse in matters of this sort. In this regard, the Court notes the comments in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, as follows:
38.In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
Applicants seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. Whilst the first applicant here did contact the Tribunal in relation to what was required of her to seek review of the Tribunal’s decision, she did not do so until 27 January 2023 (CB 172). Further, following the Tribunal’s advice to the first applicant (on 30 January 2023) about seeking review of the decision in this Court (CB 176-180), the applicants did not file an application for judicial review in this Court until 2 March 2023.
In the circumstances, the Court does not consider that the explanations provided by the applicants are satisfactory.
This weighs against granting an extension of time.
Merits
Generally, the most critical factor for consideration when determining if an extension of time ought to be granted is whether the proposed substantive application, viewed at an impressionistic level, has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicants in this matter were unrepresented, the Court gave the first applicant an opportunity to outline any concerns that she might have in relation to the Tribunal’s decisions. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to her that the only issue before the Court was whether there is an arguable case that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, 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 & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that she had not appeared at the Tribunal hearing because she had not been given proper instructions about when the Tribunal would be contacting her. While the first applicant acknowledged that she was aware that there was going to be a hearing, she was not “sure when or how the call would come through”.
The first applicant explained further that she had been working the night before, finished her night shift and put her phone on silent. When she woke, she confirmed that she had seen the missed calls but “had no idea” that she had missed the Tribunal hearing until she checked her emails and saw that the matter had been dismissed. The first applicant further explained that she “wished that the Tribunal had given [her] proper instructions” about the time that the call would have come through.
The first applicant’s submissions, to the extent that they address an arguable case of error, will be considered by the Court below.
The Tribunal’s decisions
The Non-Appearance Decision
The Non-Appearance Decision dated 18 November 2022 provides (CB 163):
1.The review applicant was invited under section 360 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 18 November 2022 at 10:00am. 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 also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
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 section 379A(5) of the Act, and the invitation has not been returned to sender. The Tribunal is also satisfied that two separate SMS reminders were also sent to the review applicant about the hearing. The Tribunal also attempted to contact the applicant at 10:00am and 10:05am on the day of hearing. The call rang several times before cutting out. No satisfactory reason for the nonappearance 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.
The Confirmation Decision
The Confirmation Decision dated 5 December 2022 provides (CB 168-169):
APPLICATION FOR REVIEW
1.This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 17 June 2022 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (Cth) (the Act).
2.On 18 November 2022 the Tribunal dismissed the application under section 362B(1A)(b) of the Act as the review applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The review applicants were 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 section 362C(5) of the Act. The review applicants were 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 review applicants 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 decisions under review are taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
Proposed application for judicial review
The applicants included the following “ground” when requesting an extension of time (without alteration):
1.emailed reinstatement application to AAT which never went through so I had no idea that my case was still at AAT but unfortunately it was dismissed.
This arguably goes to the merits of the substantive application and will be considered as such.
The applicants in this matter do not dispute that they failed to appear at the Tribunal hearing in this matter (on 18 November 2022).
When the applicants failed to appear at that hearing, the Tribunal proceeded to dismiss the review application for non-appearance pursuant to s 362B(1A)(b) of the Act (by way of the Non-Appearance Decision dated 18 November 2023, CB 163).
In circumstances where the Tribunal dismisses an application for non-appearance, an applicant may, within 14 days after receiving notice of the decision to dismiss, apply to the Tribunal for reinstatement of that application: s 362B(1B) of the Act.
As outlined above, the first applicant provided additional materials to the Court by email on 18 September 2023 in support of her claim that she had “emailed” a request for reinstatement to the Tribunal. The first applicant’s email and two attachments were (together) tendered and referenced as Exhibit 2 at the second hearing before this Court (on 20 September 2023).
In this regard, the Court notes that the first attachment contained in Exhibit 2 is a screenshot of an email from the first applicant to the Tribunal sent on 27 January 2023 in relation to the dismissal of her application. A copy of that email also appeared in the CB for this matter (CB 172-173).
As set out above, that email correspondence relevantly provided as follows (without alteration) (CB 172):
I am writing this mail in regard to the dismissal of my case, I thought I had already submitted the reinstatement application and was waiting for some sort of confirmation or mail. I only came to know that my visa was no longer active since the case was dismissed. I am just very shocked to come to know about it in this way. I know I must have missed my only opportunity to appeal again. Which I really want to since this would be my life time opportunity.
I would be grateful if there is any way I can reinstate my application. I want to complete my studies before I leave the country.
The Court notes that the Non-Appearance Decision was made on 18 November 2022. The email correspondence above (dated 27 January 2023) was sent to the Tribunal after the 14-day period within which the applicants could seek reinstatement had passed and after the Tribunal had already made its Confirmation Decision (on 5 December 2023). That email correspondence (dated 27 January 2023) could not have assisted the applicants in seeking reinstatement of their review application.
The second attachment contained in Exhibit 2 is a screenshot of what appear to be the contents of a letter. This “letter” reads as follows (without alteration):
I am writing to inform you that I was not able to attend the court call scheduled for 18th November 2022. I sincerely apologize for the inconvenience caused by my absence.
Unfortunately, I was unable to attend the court call as previously arranged as I wasn’t sure about the time for the call scheduled. On the previous night I went for my night sleep and missed the call in the morning. Moreover I wasn’t expecting the call in the morning. I understand the importance and the significance of this court session.
If there are any alternative options available, I would be more than willing to cooperate and accommodate accordingly. I also understand the importance of adhering to legal processes and will make every effort to participate and provide any necessary contributions in a timely manner.
Please accept my sincerest apologies for any inconvenience caused, and I appreciate your understanding in this matter.
Thank you for your attention to this correspondence. If there are any additional steps or actions required on my part, please don’t hesitate to inform me.
The Court notes that there is no date on the document provided, the document is not addressed to anyone and is not signed off by anyone. There is also no covering email or any evidence before the Court to suggest that the document was ever sent to the Tribunal.
In oral submissions before this Court (at the second hearing on 20 September 2023), the first applicant explained that “a friend” of hers had prepared the response on her behalf and had sent it to the first applicant to provide to the Tribunal. The first applicant explained that she thought that she had sent the document to the Tribunal but, after an extensive search of her email account (by both the first applicant and members of her family), she was unable to find any email correspondence forwarding that document to the Tribunal.
Unfortunately for the applicants, there is no evidence before the Court that the reinstatement request was ever provided to the Tribunal (either by the applicants or by their “friend” who wrote the request on their behalf). In circumstances where it appears that no reinstatement request was ever sent to the Tribunal, the Tribunal cannot have erred by failing to consider any such request.
Further, where an applicant fails to apply for reinstatement (pursuant to s 362B(1B) of the Act) within the 14-day time period, the Tribunal must confirm the decision to dismiss the application: s 362B(1E) of the Act. The Tribunal did so here.
The documents contained in Exhibit 2 and the applicants’ contention that they had “emailed a reinstatement application” to the Tribunal to not give rise to any arguable case of jurisdictional error on the part of the Tribunal.
Oral submissions
As outlined above, in oral submissions before this Court (at the first hearing on 14 September 2023), the first applicant claimed that, whilst she was aware that there would be a Tribunal hearing, she was not aware of when or how she would be contacted by the Tribunal for that hearing.
This fails on a factual level.
On 31 October 2022, the applicants were notified of the rescheduled hearing by letter (sent via email to the first applicant) (CB 148-151). Page one of that notification letter relevantly stated (CB 149):
Date: 18 November 2022
Time: 10:00 am (VIC time)
Place:By telephone – we will call you on [mobile number omitted]. Please advise us if this is not the correct number or if you would prefer us to call you on another number. Please note that you should arrange to be available for up to 3 hours. Please ensure that you are in a private place where you will not be interrupted. Please also ensure that your phone is fully charged and you have all your documents with you.
One of our officers will contact you close to the hearing time to ensure that the telephone connection is working.
The Member will be in Victoria.
Interpreter: Please advise us at least 7 days before the hearing if you require an interpreter.
Further information was also provided on pages two and three of the notification letter under the heading “Arrangements for the hearing” as follows (CB 150-151):
Arrangements for the hearing
The number we have for you is [mobile number omitted]. Please advise if this is not the correct number or if you would prefer us to call you on another number.
One of our officers will contact you close to the hearing time to ensure that the telephone connection is working.
We may make a decision at the end of your hearing.
As outlined above, the applicants in this matter were provided with all of the information needed in relation to the hearing arrangements. In particular, the applicants were notified of the date and time of the hearing and how they would be contacted. This information included the mobile phone number that the Tribunal would use to contact them at the relevant time. The applicants were also given the option of providing an alternate contact number if that mobile phone number was not suitable or preferrable.
Included with the notification letter was a fact sheet containing additional information about Tribunal hearings (CB 152-156). That information sheet relevantly provided as follows (CB 154-155):
What happens on the day of the hearing?
What happens on the day of the hearing depends upon the place and type of hearing you have been invited to appear by.
All hearings will generally involve a hearing attendant who will introduce themselves to you, confirm with you who will be attending the hearing and explain the hearing procedures. The Presiding Member will join the hearing once it is ready to commence and will administer an oath or affirmation to any person giving evidence and to the interpreter.
If your hearing is by video or telephone, you may be contacted prior to your hearing in order for us to test your video or telephone conferencing facilities.
…
If appearing by video or telephone
If the hearing is by video or telephone, your hearing invitation may contain specific instructions about how you will appear and from where. You must follow all instructions given in your hearing invitation. Unless you were invited to appear by video from an AAT office, you should appear from a quiet and private place where you will not be disturbed (e.g. from your own home). If your review relates to a protection visa, it must also be a place where you cannot be overheard.
…
If you are invited to appear by telephone, you will be contacted by us on the telephone number provided by you in connection with the review. If a telephone number was not provided by you in connection with the review, we may give you a unique telephone number for you to call for your hearing. If at any time you have difficulty hearing the Member, the interpreter or the hearing attendant, you should inform the Member or hearing attendant as soon as possible.
The applicants here were provided with all of the information needed to make sure they were available at the time of the hearing. They were also provided with detailed information about what would happen at the hearing and how it would proceed (including in circumstances where the applicants were appearing by telephone).
The notification letter also explained to the applicants what would happen if they did not appear at the Tribunal hearing, providing as follows (CB 151):
What will happen if you don’t appear
If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration f the application or the information before us. Not appearing at the scheduled hearing means:
…
•If you were invited to appear by telephone, you do not answer our phone call to you at the scheduled time or you do not call us on the number we provided you at the scheduled time.
A dismissed case can be reinstated I the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
The fact sheet (referenced above) also provided information about what the applicants could do if they were unable to attend the scheduled hearing (CB 155-156). Relevantly, the fact sheet provided as follows:
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, or you would prefer that the hearing take place in a different way (e.g. at an AAT office instead of by video or telephone), you must advise us of this as soon as possible. Please note that we will only make changes if we are satisfied that it is reasonable and there are good reasons for doing so.
If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. Not appearing at the scheduled hearing means:
…
•if you were invited to appear by telephone, you do not answer our phone call to you at the scheduled time or you do not call us on the number we provided to you at the scheduled time.
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide a convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.
The Court is satisfied that the applicants were provided with all of the necessary information required to allow them to appear at the Tribunal hearing. Relevantly, they were provided with information about the date of the hearing (being on 18 November 2022), the time of the hearing (being at 10.00am VIC time) and how they would be contacted (being by phone call to the mobile telephone number included by the applicants in their review application).
The applicants were also advised about what they should do if they could not attend the hearing at that time and what they needed to do if the mobile phone number included in their application was no longer current (or not the most preferrable number for the applicants to be contacted on at the time of the hearing).
No arguable case of jurisdictional error arises in this regard.
Conclusion regarding merits of the substantive application
Assessed at an “impressionistic level”, the applicants’ “grounds” and oral submissions do not identify any arguable case of jurisdictional error on the part of the Tribunal.
This weighs heavily against the granting of an extension of time.
CONCLUSION
The lack of a satisfactory explanation for the delay in question and the lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at a reasonably impressionistic level only) are such that it is not in the interests of the administration of justice for the Court to grant the applicants an extension of time in this matter.
The application for an extension of time (as amended on 14 September 2023) is, accordingly, refused.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 4 October 2023
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