DLT16 v Minister for Immigration
[2020] FCCA 740
•5 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DLT16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 740 |
| Catchwords: MIGRATION – Application for an extension of time in which to file application for judicial review – whether a sufficient explanation exists for the delay in bringing the application before the Court – application for an extension of time refused – application dismissed with costs. |
| Legislation: Migration Act 1958, ss.418(3), 425, 425A(2), 426(1A)(b), 429, 430A, 431, 441A , 474(2), 477(2) |
| Cases cited: CQL19 v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2019] FCCA 3460 CQZ15 v Minister for Immigration and Anor [2019] FCCA 2239 Hunter Valley Developments v Cohen [1984] FCA 176 MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 |
| Applicant: | DLT16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2507 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 5 March 2020 |
| Date of Last Submission: | 5 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 5 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Chan |
| Solicitors for the Applicant: | JT Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr Sypott |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed on 17 November 2016 be dismissed.
The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $3,737.
Orders amended pursuant to r.16.05(2)(h) of the Federal Circuit Court Rules 2001 on 11 March 2020.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2507 of 2016
| DLT16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 10 October 2016. In that decision, the Tribunal confirmed a decision of a delegate of the Minister (‘delegate’) to dismiss the applicant’s application for a Temporary Protection visa for non-appearance.
The relevant background facts, which have largely been summarised from the Minister’s submissions, are as follows. The applicant is a Vietnamese national. He arrived in Australia as an irregular maritime arrival on 8 April 2013.
The applicant lodged an application for the visa the subject of these proceedings on 24 June 2014. This was initially an application for a Protection (Class XA) (Subclass 866) visa, however, following the enactment of legislation, the application became an application for a Temporary (Class XD) 785 visa (‘visa’).
The delegate refused to grant the visa on 4 May 2015. On 7 May 2015, the applicant lodged an application for review of the delegate’s decision with the Tribunal. Under the heading entitled ‘Your Contact Details in Australia’ he listed his residential address as ‘[address omitted]’ (‘the nominated address’) and his mobile telephone number as ‘[number omitted]’ (‘the nominated number’). Under a heading entitled ‘Where Do You Want Us to Send Correspondence about Your Application’ the applicant advised that the Tribunal should send correspondence about his application to the nominated address.
On 12 May 2015 the Tribunal sent the applicant a letter acknowledging his application. That letter, relevantly, advised as follows:
‘It is important that you:
tell the Tribunal immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;
…’
The applicant was invited to attend a hearing before the Tribunal by way of letter dated 3 August 2016 sent to the nominated address. On
7 September 2016 and 13 September 2016, the Tribunal sent SMS text messages to the applicant at the nominated number reminding him of the hearing.
On 14 September 2016, the applicant did not attend the scheduled hearing before the Tribunal. The Tribunal dismissed the applicant’s application for non-appearance pursuant to section 426(1A)(b) of the Migration Act 1958 (‘Act’). That was the dismissal decision.
In making the decision to dismiss the application, the Tribunal found as follows:
a)the applicant had been invited to attend the hearing in accordance with section 425 of the Act;
b)two SMS reminders had been sent to the applicant;
c)no request for an adjournment or any communication at all, had been received from the applicant;
d)no satisfactory reason had been put forward by the applicant for non-appearance.
The dismissal decision, as well as a covering letter and information sheet outlining the applicant’s right to seek reinstatement, was sent to the nominated address on 14 September 2016. The applicant did not make an application for reinstatement.
On 10 October 2016, the Tribunal confirmed the decision to dismiss the application for review of the delegate’s decision. In making its decision, the Tribunal was satisfied that the applicant had been notified of the dismissal decision and his right to seek reinstatement in accordance with the Act. The Tribunal noted that, as the applicant had not sought reinstatement within 14 days of the dismissal decision, it was bound to confirm the decision.
On 17 November 2016, the applicant then filed his application for review in this Court. The applicant filed an affidavit in support of his application which annexed, among other things, the decision of the Tribunal. In his application, the applicant sought an extension of time in which to file the application for review.
On 9 May 2017, a registrar of this Court made orders for the conduct of the matter which provided, among other things, that:
a)on or before 24 May 2017, the Minister was to file and serve a Court book;
b)on or before 15 October 2019, the applicant was to file and serve an amended application, a supplementary Court book, if any, and written submissions;
c)on or before 29 October 2019, the Minister was to file serve written submission; and
d)the matter be listed for final hearing before Judge Wilson, as he then was, on 12 November 2019.
Further orders were then made on 22 October 2019 by Registrar Carlton, by consent, providing that the applicant was to file and serve an amended application, written submissions and a supplementary Court book, if any, at least 28 days prior to the final hearing. The Minister was to file and serve written submissions at least 14 days prior to final hearing. The matter was to be listed for final hearing on a date to be fixed. On 27 November 2019, the hearing was eventually fixed and it was fixed to this date, 5 March 2020, at 10am.
On 29 January 2020, the applicant’s solicitor filed a notice of withdrawal. The applicant was self-represented from this point until 26 February 2020, at which point he filed a notice of address for service indicating that he had engaged representation.
The Minister filed written submissions pursuant to the orders of Registrar Carlton on 20 February 2020. The applicant did not file any material in accordance with these orders.
Yesterday at around 2.20pm, that is, the day before hearing, the applicant filed an affidavit. This morning, the applicant sought leave to rely on a further affidavit of his solicitor, written submissions and the amended application. For reasons recorded in the transcript earlier, the Court granted the applicant leave to rely on the amended application. The application for an extension of time asserts two grounds on which to extend the time to make the application which are as follows:
‘1. It is in the interests of justice to grant an extension of time to the applicant as he has no other avenues of review available to him; he fears persecution upon return to Vietnam; and he has reasonable prospects of success upon review of the decision.
2. The date of the decision is 14 September 2016 and therefore the delay is not inordinate and it is unlikely that any prejudice would flow to the Respondents should the application for an extension of time be granted.’
The amended application contains one substantive ground of review. That ground of review is as follows:
‘The failure of the Minister to comply with its continuing obligation to give, to the Tribunal, documents ‘in the Secretary's possession or control and … considered by the Secretary to be relevant to the review of the decision’ in s 418(3) of the Migration Act 1958 (Cth) (the Act) prevented the Tribunal from conducting its review, and giving rise to jurisdictional error, by reason of which it is claimed that the migration decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474(2) of the Act.’
I turn to deal with the application for the extension of time. Section 477(2) of the Act permits the Court to extend the period for the filing of an application if the Court considers it is the interests of the administration of justice to do so. In considering whether it is in the interests of the administration of justice, the Court considers a range of matters, as noted by the Federal Court of Australia in Hunter Valley Developments v Cohen [1984] FCA 176. The relevant principles to be considered are the extent of the delay, the explanation of the delay, any prejudice to the respondent, the impact on the applicant, the interests of the public at large and whether the case is sufficiently arguable to warrant an extension of time.
In this respect, it is seldom in the interests of justice to exercise the discretion to extend time when an appeal has little or no prospects of success: see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] to [16].
In this matter, the Minister concedes that he suffers no prejudice. The Minister also accepts that the delay in the filing of the proceedings for, relevantly, three days is relatively small. The first question to be considered, therefore, is the adequacy of the applicant’s explanation for the delay in filing the proceedings in this Court. I have reviewed the affidavits affirmed by the applicant. They disclose the following:
(a)The applicant received the Tribunal’s application letter on 12 May 2015;
(b)In late March 2016, the applicant moved from the nominated address to an address in St Albans (‘St Albans address’);
(c)The Department of Immigration and Border Protection (‘Department’) was advised of the change of address, but not the Tribunal;
(d)In August 2016, the applicant moved from the St Albans address to an address in Sunshine. Once again, the applicant advised the Department of the change of address but not the Tribunal; and
(e)The applicant did not receive the SMS reminders sent by the Tribunal as he had changed his phone number in 2016. The applicant did not advise either the Department or the Tribunal about this change.
The fact that the Tribunal sent the confirmation decision to the nominated address rather than the Sunshine address does not disclose a sufficient explanation for delay. This is because, firstly, the Tribunal complied with its obligation under section 430A of the Act and sent the confirmation decision to the nominated address. It was the applicant’s own fault that he failed to update the Tribunal of his changed details despite being expressly advised to do so, as I have noted earlier, in the Tribunal’s correspondence. Secondly, and in any event, the applicant was aware of and received the confirmation on 19 October 2016. He had the wherewithal to seek the assistance of the Asylum Seeker Resource Centre to make enquiries on his behalf on that date. As at that date, the applicant still had 26 days to prepare his application for judicial review but he did not do so. No explanation has been provided as to why he did not do so.
I next deal with the single ground of review and whether the substantive case sought to be advanced by the applicant is sufficiently arguable. Section 425 of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments. Where an applicant fails to do so, the Tribunal may dismiss the application without further consideration. The applicant has not contended that the invitation to the hearing on 3 August 2016 is invalid. This appears to the Court to be a valid invitation.
The applicant’s central contention appears to be this. He notified the Department of his change of address. He pointed to emails contained within the Court Book at pages 16 and 18 as evidence of his notification to the Department. His argument is that the Secretary was required by section 418(3) of the Act to provide the emails to the Tribunal, and the fact that the Secretary failed to do so constitutes a failure to comply with section 418(3) of the Act and gives rise to jurisdictional error.
Section 418(3) deals with, inter alia, the obligation on the Secretary to provide documents to the Tribunal. The full text of section 418(3) is as follows:
Tribunal to notify Secretary of application for review of Part 7-reviewable decisions
…
(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.
It is apparent from the words of the provision that the Secretary is required to give to the registrar documents considered by the Secretary to be relevant to the review. This much was accepted by the applicant. It has been accepted the obligation contained within section 418(3) is a continuing obligation, see SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38 (‘SZOIN’) and CQZ15 v Minister for Immigration and Anor [2019] FCCA 2239.
The applicant says that the notification of change of address he gave to the Department is, on any view, relevant to the review by the Tribunal and therefore one that the Secretary ought to have provided to the Tribunal. The applicant says that the document was crucial to his claim in the sense contemplated for by a majority of the Full Court in SZOIN at paragraph [54].
The question of whether information held by the Minister or the Department including visa applications or change of address forms are documents that the Secretary is required to give to the Tribunal has been considered by Judge Nicholls of this Court in CQL19 v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2019] FCCA 3460. Relevantly, paragraphs [62] to [66] are as follows:
[62] I agree with the Minister that such matters as the applications for bridging visas, or change of address forms directed to the Minister’s department, and not the Tribunal, after an application for review has been made to the Tribunal, cannot readily be seen to fall within what may be relevant to the Tribunal’s statutory task. That is, a document “relevant to the review”.
[63] I agree with the Minister that direction in this regard has been provided, for current purposes, by the Federal Court:
“…ordinarily, the Secretary could only consider what documents would be relevant to the review by reference to the claims which were dealt with by the delegate…”. (Applicant S56 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 444 at [36]).
[64] In short, what is relevant to the review is directed to documents that may inform the Tribunal’s decision in the exercise of the powers conferred on it by s.415 of the Act.
[65] In the current case, as set out above, the applicant provided his relevant addresses for receiving correspondence from the Tribunal (including the relevant email address) directly to the Tribunal. He did so when he made his application for review.
[66] I agree with the Minister that in all the circumstances set out above, the applicant’s notification to the Minister’s department was not “relevant to the review”, and therefore no breach of s.418(3) arises.
It can be seen from the above that Judge Nicholls, relying on Federal Court authority, was of the view that section 418(3) is directed towards documents that are relevant to the review and what is relevant to the review is to be ascertained by reference to the claims which were dealt with by the delegate. I respectfully adopt Judge Nicholls’ reasons and analysis in respect of section 418(3) of the Act.
I note the applicant places much reliance on the decision in SZOIN. While the Full Court accepted that the failure to provide medical records in that case was a breach of section 418(3) of the Act, it did not accept in the circumstances of that case that the failure to produce those records resulted in jurisdictional error.
There are two other aspects that I wish to mention. First, the circumstances in which a breach that is not known to the Tribunal may result in jurisdictional error is extremely limited. So much was recognised by the majority in SZOIN at [60].
Secondly, in my view, the submission advanced by the applicant fails to properly engage with the relevant provisions of the Act dealing with how the Tribunal is required to respond to applicants.
First, section 425A(2) of the Act requires the Tribunal to give notice of the time, date and place of the hearing by one of the methods specified in section 441A of the Act.
Second, section 441A is important. It requires the Tribunal at subsection (4) to give the documents to the last address for service provided to the Tribunal by the recipient in connection with the review. The consequence of this provision is that even if the Secretary is under an obligation to provide an address to the Tribunal, as contended for by the applicant, the Tribunal cannot send any notification to the address provided by the Secretary. That is because section 441A(4) mandates the Tribunal to provide notices to the last address for service or the last residential address provided to the Tribunal by the recipient. The sections are cast in mandatory terms.
When these matters were raised with the applicant’s Counsel, she submitted that what could occur was that whilst the information was given to the Tribunal by the Secretary, the Tribunal could then contact the applicant. That submission, in my view, ignores the mandatory terms of both sections 425A(2) and 441A of the Act. The manner in which the Tribunal is required to contact the applicant is stipulated. It is stipulated, among other things, in the context where the statutory scheme as evidenced by sections 429 and 431 of the Act, places an importance on the privacy of hearings and the non-identification of individuals.
The suggestion that all of these matters above could or should be ignored does not accord with what is contemplated by the scheme of the Act. For the reasons above, I do not regard the applicant as having a sufficiently arguable case. I will therefore not extend the time for filing of the application.
For all of the reasons above, I dismiss the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 31 March 2020
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