DGJ21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 786
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DGJ21 v Minister For Immigration, Citizenship And Multicultural Affairs [2023] FedCFamC2G 786
File number(s): SYG 1766 of 2021 Judgment of: JUDGE LAING Date of judgment: 31 August 2023 Catchwords: MIGRATION – reinstatement application in respect of an application for an extension of time in which to seek judicial review of a decision by the Administrative Appeals Tribunal – explanation for non-attendance – prejudice – merits of the proposed application – application dismissed Legislation: Migration Act 1958 (Cth)
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 24 August 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the Respondents: Ms D. Stone of Sparke Helmore Lawyers ORDERS
SYG 1766 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGJ21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
31 AUGUST 2023
THE COURT ORDERS THAT:
1.The Reinstatement Application 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 LAING:
Before the Court is an application in a proceeding filed on 22 May 2023 (Reinstatement Application). The application seeks to set aside orders made on 1 May 2023 dismissing an application for an extension of time in which to seek judicial review on the basis of non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
The substantive application (Substantive Application) in respect of which an extension of time had been sought concerned a decision of the Administrative Appeals Tribunal (Tribunal). By that decision, the Tribunal found that it had no jurisdiction to determine an application seeking review of a decision of a delegate of the first respondent (Delegate). The Delegate had refused to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant is a citizen of the People's Republic of China (China). On 4 February 2020, he applied for a protection visa.
The Delegate refused the application on 15 January 2021. On 16 March 2021, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 9 April 2021, the applicant was invited to comment on the following:
It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] - [46].
The primary decision was emailed to you on 15 January 2021 meaning that 15 January 2021 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 11 February 2021. As the application was not received until 16 March 2021, it appears to be out of time. However, this is a matter which must be determined by a Member.
No response to this correspondence appears to have been provided.
On 3 May 2021, the Tribunal decided that it lacked jurisdiction in the matter.
THE TRIBUNAL’S DECISION
The Tribunal’s reasoning was as follows (at [1]-[6]):
1. This is an application for review of a decision of a delegate of the Minister for Immigration on 15 January 2021 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 16 March 2021. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2. As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994.
3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 15 January 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.On 9 April 2021 the Tribunal wrote to the applicant inviting his comment or response to the preliminary view that his review application was lodged out of time. No response has been received.
5. The Tribunal finds that the applicant is taken to have been notified of the decision on 15 January 2021: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 11 February 2021.
6. As the application for review was not received by the Tribunal until 16 March 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
On the basis of the above, the Tribunal concluded that it did not have jurisdiction in the matter (at [7]).
RELEVANT LAW
Section 66 of the Migration Act 1958 (Cth) (Act) relevantly provided:
Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c)unless subsection (3) applies to the application—give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made…
Section 412 of the Act relevantly provided:
Application for review of Part 7-reviewable decisions
(1) An application for review of a Part 7-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any)…
Regulation 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations) relevantly provided:
Time for lodgement of application with Tribunal…
(2) For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7-reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
Note:If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
Regulation 2.16 of the Regulations relevantly provided:
Notification of decision on visa application
(1) For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa…
(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Section 494B of the Act relevantly provided:
Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient); and
(b)state that the Minister must do so by one of the methods specified in this section;
the methods are as follows…
Transmission by fax, email or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents…
Section 494C relevantly provided:
When a person is taken to have received a document from the Minister
(1)This section applies if the Minister gives a document to a person by one of the methods specified in section 494B…
Transmission by fax, email or other electronic means
(5)If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted…
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the proceedings before this Court through an application filed on 21 September 2021. As the Tribunal’s decision was dated 3 May 2021, the applicant was more than 3 months late in applying to the Court: see 477(1) of the Act. He therefore required an extension of time. The grounds raised by the applicant were that he had “not been notified the decision legally and on time”, that he had “not been told the time limitation to be appealed in court” and that the “case is very important to the applicant”.
In relation to the proposed Substantive Application, the following was stated under the heading “Grounds of application” (reproduced verbatim):
1.The first respondent has not been assessed the situation which will impact the applicant once he returns China, he has made the statement in his social media platform which will be considered as the national security issue.
2.The first and second respondents have not referred the convincing reference from the international media or organization into this incident, the references are bias and not correct
3.The first and second respondents have not obtained any of the evidence from the applicant or give the applicant the chance to present himself into the interview or hearing, the applicant is not legally preceded and assessed.
4.The first and second respondents do not treat the applicant fairly in this application.
5.The applicant has not been legally notified his rights and decision, especially the letter from AAT is not from the member of this case.
The matter was listed for callover on 1 May 2023. The applicant did not attend the callover. The matter was accordingly dismissed pursuant to rule 13.06(1)(c) of the Rules.
On 22 May 2023, the applicant filed the Reinstatement Application.
Relevant principles
The power to set aside orders made in the absence of a party is contained in r 17.05(2)(a) of the Rules.
The principles regarding reinstatement are fairly well settled. The Court generally considers at least three matters (see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] and CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]):
(a)whether there was a reasonable excuse for non-attendance at the hearing in which the proceedings were dismissed;
(b)any prejudice; and
(c)whether the applicant has reasonably arguable prospects of success on the substantive application.
There is some overlap between these principles and those that apply to an extension of time application. In either case, the Court will be unlikely to allow an application to be reinstated, or time extended to allow it to be heard on a final basis, if the Court is not persuaded that the application has arguable merit.
Explanation for non-appearance
The applicant relies upon an affidavit dated 18 May 2023 in which he states that he didn’t attend the hearing “due to urgent personal matter”. No further explanation was provided in the affidavit.
At the hearing of the Reinstatement Application, the applicant initially suggested that he had not received the correspondence listing the matter for callover. However, the Minister relied upon an affidavit by Danielle Stone made on 21 August 2023. That affidavit indicates that in addition to the applicant being notified of the callover by the Court, he was also notified of this by the Minister through correspondence sent to an alternative email address that he had provided for communications.
When this material was drawn to the applicant’s attention, he submitted that he had been unwell and so he had gone to see a doctor. When asked about the medical evidence of this, the applicant stated that he did not see a doctor but had a fever. He stated that he had not had time to contact the Court or the Minister’s representative in advance of the listing.
Given the lack of medical evidence of this, I am not persuaded that the applicant has provided a satisfactory explanation for his non-attendance at the callover. This weighs against reinstatement.
However, for the reasons given below, I would have dismissed the application even if I had been satisfied by the explanation for non-attendance. This is because of what I have found below in relation to the merits of the proposed Substantive Application.
Prejudice
The Minister does not identify any prejudice that is specific to this case, beyond being put to the burden and cost of additional litigation in respect of a matter he contends is unmeritorious. I will consider the merits of the application further below.
The Minister observes, and I accept, that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [15]-[17].
Nonetheless, in the absence of any specific prejudice I give limited weight to this consideration.
Merits
The grounds relied upon in the applicant’s substantive application are set out above.
Insofar as the grounds seek to challenge the Delegate’s decision, this Court has no jurisdiction to conduct such a review: see s 476(2) of the Act.
To the extent that the grounds relied upon seek to challenge the Tribunal’s decision, I accept the Minister’s submission that grounds 1 to 4 appear to be premised on a misunderstanding that the Tribunal was required to conduct a review of the Delegate’s decision even if the application to the Tribunal was made out of time. Grounds 1 and 2 contend that the applicant’s circumstances in China have not been properly assessed. Grounds 3 and 4 appear to contend that the applicant was denied procedural fairness in relation to the review, including through not being given the opportunity to attend a hearing.
The difficulty for the applicant is that the Tribunal was not required and had no jurisdiction to conduct a review of the Delegate’s decision if his application to the Tribunal was made out of time and was therefore invalid: s 414 of the Act. In such circumstances, the Tribunal was not required to assess the applicant’s claims for protection, nor to afford him procedural fairness. As was considered by Judge Lucev in Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25 (Zangmo):
49.Where the Tribunal has correctly concluded that it does not have jurisdiction the Tribunal’s procedural fairness obligations do not apply: this is “well settled” law: Alam v Minister for Home Affairs [2019] FCA 389 (“Alam”) at [29], citing SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 (“SZEYK”) at [35] per Bennett J….
50.For the same reasons as have been expressed by the Federal Court in SZEYK, Alam and Benissa the Tribunal in this matter had no obligation to hear from Ms Zangmo in relation to whether it had jurisdiction, and no obligation once it determined it did not have jurisdiction to hear from her at all. To do so would have been a “nonsense”, as the Federal Court observed in Benissa at [35] per Edelman J.
51.If, however, the Tribunal was required to provide Ms Zangmo common law procedural fairness in respect of its consideration of whether it had jurisdiction: see SZEYK at [37] per Bennett J, the Tribunal discharged any such obligation when it sent the April 2019 Invitation to Comment to Ms Zangmo, at the Migration Magic Email address specified by her in the Tribunal Review Application, when inviting her to comment on the validity of the Tribunal Review Application in light of it having been filed outside the 21 day time limit: CB 60-61, an invitation to which no response was received.
As in Zangmo, the applicant in the present case was sent an invitation to comment upon the validity of his application. There can be no arguable question of any denial of procedural fairness or failure to conduct the review, if the Tribunal was correct in its assessment that it lacked jurisdiction.
The question for the Court is therefore whether the Tribunal in fact lacked jurisdiction in the matter. In this regard, I observe that:
(a)notification of the Delegate’s decision occurred by a prescribed method under s 494B(5) of the Act i.e. by email sent on 15 January 2021 to the last email address provided to the Minister for the purposes of receiving documents;
(b)the applicant was therefore taken to have received the notification on 15 January 2021: s 494C(5) of the Act;
(c)the Delegate’s decision otherwise appears to have been notified to the applicant in accordance with s 66 of the Act. In particular, I note that the correspondence clearly notified the applicant under the heading “Review rights” that he had 28 calendar days to apply to the Tribunal from the date that the email was transmitted;
(d)to be valid, any application to the Tribunal therefore needed to be validly made within 28 days of 15 January 2021: r 4.31 of the Regulations;
(e)the application to the Tribunal was not made until 16 March 2021, well after that period had expired.
Having regard to the above, I accept the Minister’s submission that the Tribunal was correct to find that it lacked jurisdiction in the matter and that no arguable ground to the contrary has been identified, or is otherwise apparent on the face of the material before the Court.
Ground 5 contends that the applicant was “not legally notified his rights and decision.” The ground is not elaborated upon, except for it stating that “the letter from AAT is not from the member of this case”. However, s 430A of the Act set out the requirements for notification of the Tribunal’s decision. Those requirements did not include any requirement for the enclosing letter to be sent from the member deciding the applicant’s case. The notification from the Tribunal appears to have complied with the requirements of s 430A of the Act. In particular, the decision was notified within 14 days by email to the last email address provided by the applicant to the Tribunal in connection with the review. This was one of the methods for delivery specified in s 441A of the Act. In any event, s 430A(3) makes clear that failure to comply with the notification requirements in respect of the Tribunal’s decision does not affect the validity of the decision.
I am therefore not persuaded that the proposed Substantive Application has reasonably arguable prospects of success.
CONCLUSION
Having regard to the above, the Reinstatement Application will be dismissed.
Even if I accepted that the other factors weighed in favour of reinstatement, I would conclude that the matter ought not to be reinstated for the reason that it lacks reasonably arguable prospects of success. As was stated in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4], it “is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful”.
I will hear from the parties in relation to costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 31 August 2023
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