DIH21 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 964

Federal Circuit and Family Court of Australia

(DIVISION 2)

DIH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 964   

File number(s):	MLG 2435 of 2021
Judgment of:	JUDGE VASTA
Date of judgment:	17 November 2022
Catchwords:	MIGRATION – Protection Visa – application for extension of time – no arguable case – no valid excuse for late filing – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	30
Date of last submission/s:	17 November 2022
Date of hearing:	17 November 2022
Place:	Brisbane
Counsel for the Applicants:	The Applicants appearing on their own behalf with the assistance of an interpreter
Solicitor for the First Respondent:	Clayton Utz

ORDERS

MLG 2435 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DIH21

First Applicant

DII21

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	17 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The application filed on 23 September 2021 is dismissed.

2.The Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $3,737.

3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

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 VASTA

Introduction

1. On 22 June 2021, the Administrative Appeals Tribunal (Tribunal/AAT) ruled that they did not have jurisdiction to review the decision of the delegate where that delegate refused to grant the applicants, DIH21 and the DII21, protection visas.  On 23 September 2021, the applicants asked this Court to review that decision.

2. As can be seen from the dates, the application was filed 58 days out of time.  The applicants had 35 days from the date of the decision to file the application in this Court, but they filed the application 93 days after the decision was made.

3. This means that the application before the Court was an application for extension of time.  There are three main factors that a Court looks at in deciding whether to grant such an extension.  These matters are:

   ·What is the reason for the late filing?

   ·What prejudice, if any, is there to the respondent?

   ·Is there an arguable case for the review?

4. With respect to the second factor, the Minister has properly conceded that there is no prejudice to the Minister, if an extension of time is granted, that cannot be cured by other orders, such as an order for costs.

5. I will then concentrate on the first and third factors in deciding whether to grant the extension.

   Is there an arguable case?

6. The background to this matter is that the applicants are citizens of Thailand.  They made their application for a protection Visa on 21 February 2018.  On 23 July 2018, the delegate refused the application for protection visas.

7. In the letter that was sent to the applicants, under the heading “review rights”, the information was that the department could not consider the visa application any further but that the applicants were entitled to apply to the AAT for a merits review of the decision.  The letter pointed out that the applicants had 28 days within which to make the application to the AAT.

8. The applicants applied to the AAT for a merits review later that same day, 23 July 2018.  The AAT acknowledged the receipt of that application the next day, 24 July 2018 via email at that nominated email address.

9. On 7 October 2020, the AAT wrote to the applicants, via email at their nominated email address, explaining that the COVID-19 pandemic had meant that reviews may be conducted via telephone.  On 12 November 2020, the AAT wrote to the applicants, via email at their nominated email address, telling them that, having considered the material before them, they were unable to make a favourable decision on this information alone.  The AAT said that it would hold a hearing, by telephone, on 15 December 2020 at midday and that there would be a Thai interpreter available.

10. The applicants did not attend that hearing.  The AAT record hearing has the following written “no show at 12:15 PM”.  The case note reads that the AAT officer was present in the hearing from 11:45 AM until 12:15 PM with the Thai language interpreter which allowed adequate time for the applicants to dial in.  It further noted that the applicants failed to dial in or make contact and therefore did not attend the hearing at the scheduled time and place.  It further noted that the “no show” was confirmed by the presiding member at 12:15 PM.

11. On 17 December 2020, the AAT wrote to the applicants, by email at their nominated email address, setting out that the applicants had been invited to a hearing and that they had failed to attend that hearing.  Because of the failure to attend the hearing, the AAT had decided to dismiss the application.

12. The letter further informed the applicants that they may apply, in writing, for the reinstatement of the application by 31 December 2020.  The letter set out what information should be contained in the reinstatement application.

13. The applicants did not make any reinstatement application.

14. On 13 January 2021, the AAT wrote to the applicants, at their nominated email address, informing them that they had decided to affirm the decision under review.  This meant that the decision of the delegate of the Minister remains in force and that the applications to have those decisions changed have been unsuccessful.

15. The reasons of the AAT are contained at CB 148.  In summary, the AAT has noted that the applicants did not apply for the reinstatement of the application within the 14 day period and that therefore, the Tribunal must confirm the decision to dismiss the application.  That meant that the decision of the delegate was taken to be affirmed.

16. On 15 January 2021, the applicants filed a review application with the AAT.  That review application sought a review of a Visa refusal made on 13 January 2021.  All of the identification criteria filled out by the applicants identified the decision that was sought to be reviewed as being the decision made by the AAT on 13 January 2021.

17. On 18 January 2021, the AAT wrote to the applicants, at their nominated email address, to acknowledge receipt of the application but explaining that the AAT could only review a decision if a valid application for review had been made and that the AAT would advise the applicants if it appeared that the application may not be valid.

18. On 1 February 2021, the AAT wrote to the applicants, at their nominated email address, explaining that it appeared that their application was not a valid application.  It explained that the decision of the delegate had been the subject of a decision by the AAT on 13 January 2021.  It advise the applicants that if they wish to make any comments about whether their application was valid, they needed to do so by 15 February 2021.

19. As previously noted, on 22 June 2021, the AAT ruled that it did not have jurisdiction to entertain the application.

20. In effect, the applicants were either trying to have the AAT review its own decision to affirm the decision of the delegate or they were asking the AAT to again review the decision of the delegate to refuse their application for a protection Visa.

21. If it were the former, the AAT has no power to review its own decision.  If it were the latter, the AAT was functus officio in respect of the decision of the delegate after they had made their decision of 13 January 2021.

22. It cannot be said that there is an arguable case that the AAT had fallen into jurisdictional error when they made their ruling on 22 June 2021.

    What is the reason for the late filing?

23. In the originating application, the applicants wrote the following as their grounds for the application for extension of time, as originally written:-

    Because on that time I was have a problem with received a letter refuse till I have check my visa expired, so i trying to contact the people is have received this letter and forward this refuse to me and I have appeal but Is to late.  I have appeal not on time.so that make me worried and anxious. I worry about court fees and so scared that could be Arrested for not having a visa.  I hope and would like to request to FCC to set aside old order and replace by new order and accept my application for review as a valid application and decide on this matter

24. There was no real excuse discernible in those “grounds”.

25. The applicants appeared before me unrepresented but with the assistance of an interpreter.  The second applicant told the Court that “from the beginning I didn’t have language ability and I didn’t receive the notice”.  She said that she could not contact the person that started the process but conceded it was her fault that she didn’t check her email until she found out she was cut off.

26. The second applicant apologised for her actions but asked for an opportunity now and told the Court that she would really like to get a Visa.

27. The second applicant said that she had no knowledge of the law or of the procedure.  She said that she was just asking for the opportunity to have any Visa that allowed her to stay in the country.

28. It seems to me that there is no valid excuse for the delay in filing this application.

    Conclusion

29. On the evidence before me, there is no valid reason as to why the application was filed late and there is no arguable case for the application generally.

30. I refuse the application for extension of time.  This has the effect of dismissing the application filed in this court on 23 September 2021.  I order that the applicants pay the costs of the Minister fixed in the sum of $3,737.  I will also order the change of name for the Minister.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       17 November 2022