DGO19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 271
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DGO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 271
File number(s): MLG 2792 of 2019 Judgment of: JUDGE GOODCHILD Date of judgment: 20 April 2023 Catchwords: MIGRATION - protection visa - decision of the Administrative Appeals Tribunal - application for extension of time - significant delay - unsatisfactory explanation for delay - no prejudice - no arguable case of jurisdictional error - application dismissed Legislation: Migration Act 1958 (Cth) 425, 425A, 426A, 426B, 441A, 441C & 477
Migration Regulations 1994 (Cth)
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Manna v Minister for Immigration and Citizenship [2013] FCA 400
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 and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268
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
Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Tran v Minister for Immigration & Border Protection [2014] FCA 533
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: 92 Date of hearing: 12 April 2023 Place: Sydney Applicant: In Person Solicitor for the Respondents: Ms I Leonard of Australian Government Solicitor ORDERS
MLG 2792 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGO19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
20 april 2023
THE COURT ORDERS THAT:
1.The Minister’s name is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) is 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 GOODCHILD:
INTRODUCTION & BACKGROUND
The applicant in these proceedings (“the applicant”) is a 29-year-old citizen of Malaysia. He arrived in Australia on 23 May 2016 and lodged an application for a protection visa on 22 August 2016 (Court Book (“CB”) 50 to 53).
On 13 March 2017 a delegate of the then Minister for Immigration (“the delegate”) made a decision not to grant the applicant a protection visa (CB 53 to 66).
On 23 March 2017, the applicant lodged an application with the Administrative Appeals Tribunal (“the Tribunal”) for a merits review of the delegate’s decision. In his review application, the applicant nominated an email address for service of documents, and also provided a mobile number.
On 12 March 2018, the Tribunal sent an email to the applicant’s nominated email address, inviting the applicant to attend a hearing on 19 April 2018 at 1.30 pm (WA time). Correspondence attached to that email advised the applicant that at that hearing he would be provided the opportunity to give evidence and present arguments relating to the issues in his case (CB 72 to 74).
The Tribunal sent the applicant two SMS reminders of the hearing, one five business days before the hearing, and the other one business day before the hearing. There was no appearance by or on behalf of the applicant at the hearing (CB 80).
In the circumstances of the applicant’s failure to attend the Tribunal hearing on 19 April 2018, the Tribunal made a decision (“the Non-Appearance Decision”) to dismiss the applicant’s review application pursuant to s 426(1A)(b) of the Migration Act 1958 (Cth) (“the Act”). A copy of that decision was emailed to the applicant. He was also informed he could make an application to reinstate his review application.
The applicant did not apply for reinstatement. As such, on 4 May 2018 the Tribunal made a decision to confirm the Non-Appearance Decision (“the Confirmation Decision”) (CB 93) which, by virtue of s 426A(1F) of the Act, meant the delegate’s decision was taken to be affirmed.
On 28 August 2019, the applicant filed an application for judicial review of the Tribunal’s decision to dismiss his application in this Court.
Pursuant to s 477(1) of the Act, the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. The applicant is 426 days out-of-time in relation to the Non-Appearance Decision (dated 19 April 2018), and 411 days out of time with respect to the Confirmation Decision (dated 4 May 2018).
Accordingly, the applicant requires an extension of time pursuant to s 477(2) of the Act to pursue his judicial review proceedings in this Court.
On 12 April 2023, the applicant’s extension of time application proceeded to an electronic hearing before me. At the hearing the applicant appeared unrepresented. An interpreter in the Malay language was present to assist the applicant. The first respondent in these proceedings (“the first respondent”) attended the hearing represented by a legal representative.
This Judgment addresses whether an extension of time should be granted.
For the reasons that follow, the Court concludes that an extension of time should not be granted.
LEGAL PRINCIPLES
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period within which a substantive judicial review application can be filed, if:
(a)an applicant makes an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court considers that it is in the interests of the administration of justice to do so.
In the present case, the applicant filed his Originating Application on 28 August 2019 seeking an extension of time, and provided therein the following “grounds” for why he believes an extension should be granted:
1.I DID NOT HAVE ENOUGH MONEY FOR THE COURT APPEAL PROCESS AT THE TIME
2.I ALSO VAN NOT TO PAY LEGAL SERVICE FOR APPEAL TO THIS COURT AT THAT MOMENT. SO TO MAKE SURE I IN LAWFULL I GET VOLUNTEERED IN UNION OF WORKERS TO HELP ME IN THIS APPEAL PROCESS.
(As per original)
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.
While the factors which may be considered when determining whether to grant an extension of time are not limited, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen[1] (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2]) 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”.
[1] (1984) 3 FCR 344.
[2] [2022] HCA 28 (“Tu’uta Katoa”) at [12].
When considering the merits of the proposed substantive application as a factor in assessing whether to grant an extension of time, the Court will do so at a “reasonably impressionistic level”.[3] 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.[4]
[3] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392.
[4] MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”); Tu’uta Katoa at [54].
To assist the applicant who, as noted, was unrepresented at the hearing on 12 April 2023, the Court explained to him 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 for migration decisions of this sort, 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;[5]
(b)where the decision-maker ignores relevant material;[6]
(c)where the decision-maker relies on irrelevant material;[7]
(d)where the decision-maker fails to follow mandatory procedures;[8]
(e)where the decision-maker shows actual or apprehended bias;[9] and
(f)where the decision is illogical, irrational or unreasonable.[10]
[5] Craig v State of South Australia (1995) 184 CLR 163 at 198.
[6] Ibid.
[7] Ibid.
[8] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208].
[9] SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2].
[10] 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 to the applicant that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. 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.[11]
[11] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
CONSIDERATION
The materials before the Court include:
·the applicant’s Originating Application filed 28 August 2019;
·the applicant’s Affidavit filed in support of his Originating Application dated 28 August 2019;
·the first respondent’s Response filed 4 September 2019;
·the Court Book filed by the first respondent on 2 March 2021;
·the first respondent’s written Outline of Submissions filed 23 March 2023;
·the first respondent’s List of Authorities filed 28 March 2023; and
·the first respondent’s Affidavit of Service filed 6 April 2023.
Noting the applicant was without legal assistance at the hearing before me, the Court went through with him the material before the Court.
The Court confirmed with the applicant that he had the Court Book and the written Outline of Submissions of the first respondent. The matter was stood down for a period of time to allow the interpreter to interpret for the applicant the written submissions of the first respondent. When the matter resumed, the applicant was asked if there was anything further he wished to say in respect of his application for an extension of time. The applicant’s responses, where relevant, will be included in my consideration of the factors below. The Court was satisfied that the applicant fully understood the proceedings and was able to properly participate in and follow the proceedings.
Length of delay
The Court notes that an extension of time is not granted as a right.[12] Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule.[13]
[12] Gallo v Dawson [1990] HCA 30 at [2] per McHugh J.
[13] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
The delays in this matter are 426 days in relation to the Non-Appearance Decision and 411 days in relation to the Confirmation Decision.
The delay here is significant and weighs against the granting of an extension of time.
Prejudice
It was conceded by the first respondent’s solicitor in written submissions filed in this Court on 29 March 2023 that the first respondent does not face any substantive prejudice if the extension was granted.
This weighs in favour of granting the extension of time.
Explanation for delay
The longer the delay in question, the more satisfactory the explanation for that delay needs to be.[14]
[14] Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
In his Affidavit filed in support of his judicial review application, the applicant did not provide any explanation for the delay in commencing the proceedings in this Court. In that affidavit, the applicant attaches both the Non-Appearance Decision and Confirmation Decision made by the Tribunal.
When asked at the hearing to provide a reason for the delay in filing his application for judicial review, the applicant explained that he had worked in a remote area where transportation was difficult. The applicant stated he was thinking of starting a business in the future. When pressed for an explanation for the delay, the applicant proceeded to request that he stay and work in Australia lawfully. Nothing the applicant said assisted me in my consideration of the applicant’s explanation for delay.
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. The applicant in this matter did not do that. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about what was required of him.
The Court does not consider the explanations provided by the applicant to be satisfactory.
This weighs against granting an extension of time.
Merit
The most critical factor for consideration when determining whether an application for an extension of time ought to be granted is whether the proposed application for judicial review has any “arguable prospect of success” or merit.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows:
17.… 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”[15]. 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[16], 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.[17]
[15] CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at 452 [19].
[16] MZABP [2015] FCA 1391; (2015) 242 FCR 585 at 597 [58].
[17] Federal Court of Australia Act1976 (Cth), s 24(1)(a).
The application for judicial review filed by the applicant on 28 August 2019 includes the following grounds of review:
1.THE TRIBUNAL CONSIDER MANY VITAL INTEGER OF MY CASE.
2.THAT TIME IM HEARING, IM UNSATISFIED WITH THE INTERPRETER, BECAUSE HE FROM INDONESIA AND OUR DIALECT IS DIFFERENT MEANING.3.THE TRIBUNAL FAILED TO CONSIDER MANY VITAL EVIDENCE THAT ARE RELEVANT TO MY CASE
4.THE TRIBUNAL DEPRIVED ME OF PROCEDURAL FAIRNESS.
5.THE TRIBUNAL MEMBER RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FROM SOME OTHER TRIBUNAL CASE.
1.1 THE MEMBER HAS FAILED TO DO HIS DUTY
1.2 THE MEMBER FAILED TO ASK ME QUESTIONS ABOUT THE TYPES OF HARM RELEVANT.
6.ACCORDING IN SECTION 44 OF THE ADMINISTRATIVE APPEAL TRIBUNAL ACT 1975 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT.
(As per original, including strike-through format in Ground 2)
The applicant’s application contains no particularisation of the grounds of the judicial review. Orders were made for the applicant to file and serve any amended Application and any Affidavit containing additional evidence to be relied upon. Orders were also made for the applicant to file and serve Written Submissions. On a review of the applicant’s Application and Affidavit, there is nothing contained in either document which gives rise to matters of jurisdictional error.
Despite this, it is important to ensure that the applicant’s judicial review application is substantially considered by this Court. The Court gave the applicant an opportunity to elaborate on the substantive “grounds of review” identified in his judicial review application, and to outline any other concerns that he might have in relation to the Tribunal’s decisions.[18]
[18] 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].
The applicant told me that at the time of the Tribunal hearing he had only just arrived in Australia and he did not have very much money and he had problems with his mobile phone. He said that he did not know anything about the Tribunal and he thought it was not fair that his visa was cancelled. He said he worked in a remote area and workers like him are needed. He said he had problems with the telephone line there and it was very difficult and it was only when he went to the city did he find that his visa had been cancelled. He said that he wants to be able to stay longer in Australia lawfully. Nothing that the applicant said to me was relevant in advancing the prospects of success of this case.
The applicant’s oral submissions did not raise any allegation of jurisdictional error or any issue of the sort that this Court can address.
However, in its duty to assist self-represented litigants, the Court will consider for itself whether any arguable case of error arises in the Tribunal’s decision.[19]
[19] MZAIB [59] to [77].
Having regard to the grounds of review contained in the applicant’s application and having regard to the nature of the decisions under review, I propose to consider the following issues:
(a)whether the applicant was properly invited to attend the Tribunal hearing;
(b)whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance; and
(c)whether the Tribunal erred by confirming the decision to dismiss the application.
For completeness, I first set out the Tribunal’s decisions.
The Tribunal’s Decision
The Non-Appearance Decision
The Non-Appearance Decision dated 19 April 2018 provides (CB 90):
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 19 April 2018 at 1.30pm. 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 two SMS reminders to the applicant’s nominated telephone number about the hearing. One reminder was sent five business days, and the other reminder was sent 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 review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. When the applicant did not appear at the scheduled time and place, a call to the applicant was placed on their nominated mobile telephone number at that time without success.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
(As per original)
The Confirmation Decision
The Confirmation Decision dated 4 May 2018 provides (CB 94 to 95):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 August 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 19 April 2018 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was 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 s.426B(5). The applicant was 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 applicant did not apply for reinstatement of the application within 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5.The Tribunal confirms the decision to dismiss the application.
(As per original)
Whether the applicant was properly invited to attend the Tribunal hearing
As noted above, the applicant did not attend the Tribunal hearing scheduled on 19 April 2018 which resulted in the Tribunal dismissing the applicant’s application for review pursuant to s 426A(1A)(b) of the Act.
The Tribunal was required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act. That section provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
On 12 March 2018, an email was sent from the Tribunal to the email address provided by the applicant in his review application. Attached to that email was an invitation from the Tribunal to the applicant to attend a hearing at 1.30 pm (WA time) on 19 April 2018, at a specified address which was the Tribunal’s Perth registry (CB 72 to 74).
Notably, in the correspondence sent from the Tribunal notifying the applicant of the hearing, the following paragraphs are included (CB 74):
If you are not able to attend the hearing, you need to advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend 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. A dismissed case can be reinstated if 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.
(As per original)
The necessary requirements for a Notice of invitation to appear is set out in s 425A of the Act, which relevantly provides:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
In the present case, the invitation to attend the hearing:
(a)was addressed to the applicant (CB 72 to 73);
(b)clearly indicated the date, time and means by which the applicant could attend the Tribunal hearing (CB 73);
(c)was sent to the applicant’s email address provided by him in his review application (CB 72 to 73), noting that email notification is a method approved by s 441A(5)(b) of the Act;
(d)was provided to the applicant 38 days prior to the scheduled hearing, being a time-frame exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth); and
(e)contained information describing the effect of s 426A of the Act and the particular consequences of a failure to attend the hearing (CB 74).
It should be further noted that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter – where the invitation was sent via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case, at the end of the day it was transmitted, being 12 March 2018), regardless of whether the document was actually received.[20]
[20] SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].
The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act. The applicant in this matter was properly invited to attend the hearing.
No arguable case of error arises in this regard.
Whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance
As outlined by this Court in BHG22[21] (citing ACN22[22]), before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (under s 425 of the Act) to appear before it.
[21] BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176 (“BHG22”).
[22] ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744.
Further, ss 425 and 425A of the Act are to be read together.[23] That is, if s 425A of the Act has not been complied with, a valid notice of invitation has not been sent and the Tribunal’s powers under s 426A of the Act will not be enlivened.
[23] Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39] (“SZFHC”).
As set out above, the Court is satisfied that the applicant in this matter was properly invited to appear at the Tribunal hearing as required by ss 425 and 425A of the Act.
Because the applicant had been validly invited to attend a hearing, but failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section provides:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
The applicant did not appear at the hearing on 19 April 2018. He does not dispute this.
In the circumstances, two options were available to the Tribunal. It could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or it could dismiss the applicant’s review application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
The Tribunal, in this matter, chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The Tribunal’s decision to exercise its powers in this regard is discretionary. As such, that decision must be made “reasonably”.
In the circumstances of this matter, the Court is satisfied that the Tribunal acted reasonably. Relevantly:
(a)the hearing invitation was sent to the applicant via email sent to his nominated email address and there was no evidence before the Tribunal to suggest that the applicant had not received that invitation (for example, there was no email failure notice received);
(b)after lodging his application for review (on 23 March 2017), the applicant did not engage or make contact with the Tribunal (until after the Confirmation Decision had been made);
(c)no further material had been provided to the Tribunal by the applicant in support of his review application;
(d)a SMS hearing reminder was sent to the applicant’s nominated mobile number on 12 and 18 April 2018;
(e)the applicant did not appear at the Tribunal hearing at the scheduled time of 1.30 pm (WA time) on 19 April 2018 (CB 73 to 87); and
(f)the Tribunal called the applicant at 1.38 pm. The call went to voicemail (CB 91).
The Court further notes that, as was explained in BHG22 (citing Sun[24] and Mohammed[25]), where an invitation to attend a hearing has been sent and complies with the requirements set out in s 425A of the Act, there is no obligation on the Tribunal to consider other ways in which an applicant can be notified of the scheduled hearing.[26] This is further reinforced by amendments to the wording of s 425 of the Act, which previously required that the Tribunal provide an applicant with an “opportunity” to appear. The current provision only requires that the Tribunal “invite” the applicant to appear.[27]
[24] Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901.
[25] Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268.
[26] SZFHC at [39].
[27] SZFHC at [41].
The Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicant’s application pursuant to s 426A(1A)(b) of the Act.
No arguable case of jurisdictional error arises in this regard.
Whether the Tribunal erred by confirming the decision to dismiss the application
Insofar as the applicant raises any concerns in relation to the Tribunal’s Confirmation Decision, the Court notes that applicant was notified (by email) of the Non-Appearance Decision on 19 April 2018 (CB 85 to 90).
The Court notes that, when the applicant was advised that his application had been dismissed, he was also advised that he could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (that is, by 3 May 2018). Relevantly, the letter provided as follows (CB 88):
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 3 May 2018. 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.
This letter complied with the requirements of s 426B(6) of the Act.
The applicant did not seek reinstatement or make any contact with the Tribunal prior to the Confirmation Decision being made. Section 426A(1E) of the Act provides:
If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
In circumstances where no application for reinstatement was made by the applicant, the Tribunal was legislatively required to confirm the decision to dismiss the applicant’s application.
The Tribunal did so and provided the applicant with a written statement to that effect, in the form of the Confirmation Decision, on 8 May 2018 (CB 93 to 95).
No arguable case of error arises in relation to the Tribunal’s Confirmation Decision.
Conclusion regarding merits of the substantive application
It was is not entirely clear from the applicant’s oral submissions what the applicant means when he claims that it was “not fair” that his visa was cancelled.
To the extent that the applicant is referencing the Tribunal’s decision to dismiss the applicant’s application when he failed to appear at the Tribunal hearing, for the reasons outlined above, the Court is satisfied that the applicant was validly invited to attend the Tribunal hearing and that the Tribunal acted reasonably when exercising its discretion to dismiss the applicant’s review application. I am satisfied that the Tribunal Member has not failed to do his duty and that the applicant has been provided with procedural fairness.
No arguable case of error arises in this regard.
Insofar as the applicant takes issue with the Tribunal not considering his review application, the Court notes that the Tribunal was not required to do so.
The applicant contends that the Tribunal failed to consider vital evidence that was relevant to the applicant’s case. The applicant has not identified any of that evidence.
The applicant has not identified what incorrect information the Tribunal Member has relied upon. Further, the applicant has not indicated whether, and on what basis, the Tribunal in dismissing his application has decided his case using facts from some other case.
The applicant did not appear at the hearing on 19 April 2018.
In the circumstances, the Tribunal had two options available to it. As outlined above, the Tribunal could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act), or, it could dismiss the applicant’s review application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
The Tribunal in this matter chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The Tribunal was legislatively empowered to do so and, as outlined above, the Court is satisfied that the Tribunal exercised its discretionary power in that regard reasonably.
No arguable case of error arises in this regard.
Assessed at a reasonably impressionistic level, the applicant’s “grounds of review” and oral evidence before the Court in this matter do not identify any arguable case of jurisdictional error on the part of the Tribunal.
Further, the Court has itself been unable to identify any arguable grounds of error of the sort that this Court can address.
This weighs heavily against granting an extension of time.
CONCLUSION
The lengthy delay in filing, the lack of both a satisfactory explanation for that delay and an arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level only), are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time is, accordingly, refused.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild . Associate:
Dated: 20 April 2023
0
27
0