DNU21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 560
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DNU21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 560
File number(s): MLG 2570 of 2021 Judgment of: JUDGE GOODCHILD Date of judgment: 30 June 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 with costs Legislation: Migration Act 1958 (Cth) 425, 425A, 426A, 426B, 441A, 441C, 477
Migration Regulations 1994 (Cth)
Cases cited: 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 163CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187
Englezos v Secretary, Department of Social Services [2023] FCA 31
Gallo v Dawson (1990) 93 ALR 479
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 611Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
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) 242 FCR 585
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SNYE v Minister for Immigration and Citizenship [2010] FCA 500
Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901
SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Tran v Minister for Immigration & Border Protection [2014] FCA 533Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 30 May 2023 Place: Sydney Applicant: In Person Solicitor for Respondent: Ms N Bosnjak of Mills Oakley Lawyers ORDERS
MLG 2570 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DNU21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
30 June 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
2.The applicant pay the first respondent’s costs in the amount of $4,189.38.
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:
The applicant seeks an extension of time to apply for judicial review of a decision made by the Administrative Appeals Tribunal on 30 August 2017.
In circumstances where the applicant did not attend a hearing before the Tribunal on 15 August 2017, the Tribunal had dismissed her application to review a decision made by a delegate of the then Minister for Immigration to refuse her a Protection visa.
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.
The applicant in these proceedings is a 49-year-old citizen of Malaysia. She arrived in Australia on 7 December 2015 as a holder of a UD-601 Electronic Travel Authority visa. On 31 October 2016, the applicant lodged an application for a Protection (subclass 866) visa.
On 10 March 2017 a delegate of the then Minister for Immigration made a decision refusing to grant the applicant the visa (“the delegate’s decision”).
On 7 April 2017, the applicant lodged an application with the Tribunal for a merits review of the delegate’s decision. In that review application, the applicant provided an email address for service of documents, and also provided a telephone number.
On 10 April 2017, the Tribunal sent an email to the applicant’s nominated email address acknowledging receipt of her review application. In that correspondence, the Tribunal instructed the applicant to immediately update the Tribunal of any change to her contact details.
On 25 July 2017, the Tribunal emailed the applicant’s nominated email address, inviting her to attend a hearing on 15 August 2017 at 9.30 am (VIC time). The applicant was informed by the Tribunal that at the hearing she would have the opportunity to give evidence and present arguments relating to the issues in her case. The applicant did not respond to the hearing invitation.
On 8 and 14 August 2017, the Tribunal sent an SMS to the applicant’s telephone number reminding her of the date and time of the hearing. According to Tribunal records, neither of the messages failed to deliver.
At the Tribunal hearing on 15 August 2017, there was no appearance by or on behalf of the applicant.
As a result of the applicant’s failure to attend the Tribunal hearing on 15 August 2017, 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”). On the same day a copy of that decision was emailed to the applicant at her nominated email address. By correspondence attached to the email, the applicant was also informed she could make an application to reinstate her review application.
The applicant did not apply for reinstatement. As such, on 30 August 2017, the Tribunal made a decision to confirm the Non-Appearance Decision (“the Confirmation Decision”) which, by virtue of s 426A(1F) of the Act, meant the delegate’s decision was taken to be affirmed. A copy of the Confirmation Decision was sent to the applicant by email on 30 August 2017.
By an application filed in this Court on 7 October 2021, the applicant seeks an extension of time to apply for judicial review of the Tribunal’s Confirmation Decision. The applicant does not refer in her application to the Tribunal’s Non-Appearance Decision of 15 August 2017 and this decision was not attached to the applicant’s Affidavit in support of the application. However, I treat this review application as an application with respect to both the Tribunal’s Non-Appearance Decision of 15 August 2017 and the Tribunal’s Confirmation Decision dated 30 August 2017.
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 1,479 days out-of-time in relation to the Non-Appearance Decision (dated 15 August 2017), and 1,464 days out-of-time with respect to the Confirmation Decision (dated 30 August 2017).
Accordingly, the applicant requires an extension of time pursuant to s 477(2) of the Act, to pursue her judicial review proceedings in this Court.
On 30 May 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.
LEGAL PRINCIPLES – EXTENSION OF TIME
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)the applicant makes an application for extension of time in writing detailing why the extension should be granted; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension.
In the present case, the applicant filed her Originating Application on 7 October 2021 seeking an extension of time, and provided therein the following “grounds” for why she believes an extension should be granted:
1.I DID NOT HAVE ENOUGH MONEY FOR THE COURT APPEAL PROCESS AT THE TIME.
2.I ALSO CAN NOT 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 of the High Court in relation to a substantively similar provision in s 477A(2) of the Act, in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[1] the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether there has been a reasonable and adequate explanation for the delay (explanation);
(c)whether there is any prejudice to the Minister (prejudice); and
(d)whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time (merits of substantive application).
[1] (2022) 403 ALR 604 (“Katoa”) at [12]-[13].
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”.[2] 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.[3]
[2] MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 (“MZABP”).
[3] MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (“MZAIB”); Katoa at [54].
In Katoa, the High Court considered, in relation to s 477A(2) of the Act, that the provision entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighted and assessed, including by reference to the merits of the proposed application. It will not constitute jurisdictional error to undertake more than an impressionistic assessment of the merits, leaving the discretion to exercise this power “deliberately broad”.[4]
[4] Katoa at [39], [46]-[61].
To assist the applicant who, as noted, was unrepresented at the hearing on 30 May 2023, the Court explained to her 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 ignores relevant material;[5]
(b)where the decision-maker relies on irrelevant material;[6]
(c)where the decision-maker fails to follow mandatory procedures;[7]
(d)where the decision-maker shows actual or apprehended bias;[8] and
(e)where the decision is illogical, irrational or unreasonable.[9]
[5] Craig v State of South Australia (1995) 184 CLR 163 at 198.
[6] Craig v State of South Australia (1995) 184 CLR 163 at 198.
[7] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208].
[8] SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2].
[9] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 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 she 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 decision to dismiss the applicant’s application.[10]
[10] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
SHOULD AN EXTENSION OF TIME BE GRANTED
The Court confirmed with the applicant that she had the Court Book and the written Outline of Submissions of the first respondent which had been served on her on 6 April 2022 and 16 May 2023, respectively. The matter was stood down for a period of time to allow the Malay interpreter to translate for the applicant the written submissions of the first respondent. When the matter resumed, the applicant was asked if there was anything further she wished to say in respect of her 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.[11] 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.[12]
[11] Gallo v Dawson (1990) 93 ALR 479 at [2] per McHugh J.
[12] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
The delays in this matter are 1,479 days in relation to the Non-Appearance Decision and 1,464 days in relation to the Confirmation Decision.
The delays here are very significant and weigh 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 16 May 2023 that the first respondent suffers no prejudice if the extension was granted, other than the cost of defending an “unmeritorious application”.
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.[13]
[13] 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.
The Affidavit filed by the applicant in support of her judicial review application does not provide any explanation for the delay in commencing the proceedings in this Court. In that Affidavit, the applicant annexes the Confirmation Decision made by the Tribunal dated 30 August 2017. It is in the Originating Application and the applicant’s oral submissions where she provides some detail as an explanation for delay.
The applicant states in her Originating Application that she did not have enough money to pursue an appeal at the relevant time. She goes on to say that, as she lacked the funds to obtain legal advice, she sought assistance from a “union of workers” to help her with making her present review application. It should be noted here that while the Court will generally provide some latitude to self-represented litigants in the conduct of matters to which they are a party, the authorities are clear that a lack of legal advice alone is an insufficient excuse for failure to comply with statutory time frames.[14]
[14] Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17]; SNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9].
Before me, the applicant submitted that in 2017 (at the time of the Tribunal hearing) she had been working on a farm and was impecunious. She told the Court that she did not know anything about visas and was instead assisted by a friend who received “everything” and would relay information back to her. The applicant added that although this friend received the relevant emails, this friend had “tricked” her. She said she was in a state of despair, did not have any money and that every time she earned money she was tricked by her friends. She further claimed she did not do anything because she did not know what to do and later found a new friend to assist her.
When asked to confirm whether she did not attend the Tribunal hearing because she did not have any money, the applicant agreed and added that she lived “far away from Melbourne”. She then conceded that she knew that the Tribunal hearing was listed in August 2017. When asked further why it had taken her so long to make her judicial review application, the applicant answered (as interpreted), “my friend was the one who asked me to apply with this Court”. The applicant elaborated that “every time I applied for it, I felt like I’ve been tricked by my friends, and it has happened many times”. She later told the Court that she did not have anything to do with preparing her judicial review application.
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 her. As was recently discussed by Collier J in Englezos:[15]
As a general position, I note that an inability to obtain legal advice does not, in itself, form an adequate explanation for delay. Whilst the Court may have sympathy for a litigant in person, a failure to abide by any stipulated timeframe in the filing of an appeal by virtue of a professed ignorance of the relevant rules is not an adequate reason for delay: BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40]; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]. Although a person wishing to bring an action or appeal is entitled to seek assistance from legal practitioners, it is ultimately the proposed applicant’s case and responsibility to ensure compliance with the relevant requirements; see for example SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]…
Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not “mere aspirational guidelines” and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40].
(Emphasis added)
[15] Englezos v Secretary, Department of Social Services [2023] FCA 31.
The Court does not consider that the applicant has provided a satisfactory explanation for the delay.
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”.
In this regard, the Court refers to the High Court’s decision in 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”.[16] 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,[17] 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]
[16] CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at 452 [19].
[17] MZABP [2015] FCA 1391; (2015) 242 FCR 585 at 597 [58].
[18] Federal Court of Australia Act1976 (Cth), s 24(1)(a).
The Originating Application filed by the applicant on 7 October 2021 includes the following grounds of review:
1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE
2.THE TRIBUNAL DEPRIVED ME OF PROCEDUR FAIRNESS
3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE;
4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABAOUT THE TYPES OF HARM RELEVANT IN MY CASE.
5.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)
The applicant’s application contains no particularisation of the grounds of the judicial review. Although orders were made for the applicant to file and serve any amended application and any affidavit containing additional evidence to be relied upon, she did not do so. Orders were also made for the applicant to file and serve written submissions, however none were filed.
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 her judicial review application, and to outline any concerns that she might have in relation to the Tribunal’s decision.
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 do its best to consider for itself whether any arguable case of error arises in the Tribunal’s decisions.[19]
[19] MZAIB [59] -[77].
For completeness, I first set out the Tribunal’s decisions.
The Tribunal’s Decisions
The Non-Appearance Decision
The Non-Appearance Decision dated 15 August 2017 provides:
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 15 August 2017 at 9:30am. 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 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. No satisfactory reason for the non-appearance 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.
(Emphasis in original)
The Confirmation Decision
The Confirmation Decision dated 30 August 2017 provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 15 August 2017 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 the 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.
Proposed ground one - whether the Tribunal failed to consider vital integers of the applicant’s case
By proposed ground one, the applicant makes a complaint that the Tribunal failed to consider “many vital integer” of her case. She does not, however, identify with sufficient particularity what it is the Tribunal failed to consider.
In any event, the first respondent does not dispute in written submissions made on its behalf that the Tribunal did not consider integers of the applicant’s case as contended. The first respondent submits, however, that the Tribunal was not at all required to consider integers and evidence relating to the applicant’s claims, given the applicant had failed to attend the scheduled Tribunal hearing, and it was thereby open to the Tribunal - pursuant to s 426A(1A)(b) of the Act - to dismiss the applicant’s review application “without any further consideration of the application or information” before it.
In the circumstances of this case, I accept the first respondent’s submission that in light of the applicant’s non-appearance, the Tribunal was permitted in its discretion to dismiss the applicant’s review application without considering the applicant’s review case any further. I note here that I do not consider that the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance, having particular regard to the fact that:
(a)the hearing invitation was sent to the applicant via email sent to her 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);
(a)after lodging her application for review (on 7 April 2017), there is no evidence that the applicant engaged with or made contact with the Tribunal;
(b)no further material had been provided to the Tribunal by the applicant in support of her review application;
(c)a SMS reminder was sent to the applicant’s nominated mobile number on 8 and 14 August 2017; and
(d)the applicant did not appear at the Tribunal hearing at the scheduled time of 9.30 am (VIC time) on 15 August 2017.
Accordingly, no jurisdictional error arises in this regard.
Proposed ground two - whether the Tribunal denied the applicant procedural fairness
The applicant asserts by her second proposed ground that the Tribunal denied her procedural fairness.
Division 4 of Part 7 of the Act comprises an exhaustive statement of the requirements of the natural justice hearing rule that the Tribunal must comply with in relation to the matters that they deal with.[20]
[20] s 422B(1) of the Act.
Of those various provisions prescribing the Tribunal’s procedural fairness obligations, the two most relevant in the present case are ss 425 and 426B, in circumstances where the applicant failed to appear at the Tribunal hearing on 15 August 2017 which resulted in the Tribunal dismissing the applicant’s application for review pursuant to s 426A(1A)(b) of the Act.
The obligation to properly invite the applicant to a Tribunal hearing - s 425
Pursuant to s 425 of the Act, the Tribunal is required to invite the applicant to attend a hearing before it. 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.
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.
On 25 July 2017, an email was sent from the Tribunal to the applicant’s email address provided by the applicant in her review application. Attached to that email was an invitation from the Tribunal to the applicant to attend a hearing at 9.30 am (VIC time) on 15 August 2017, at a specified address which was the Administrative Appeals Tribunal, Melbourne.
Notably, in the correspondence sent from the Tribunal notifying the applicant of the hearing, the following paragraphs are included:
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.
A leaflet containing information about hearings, dismissals and the rights of applicants, was also attached to the Tribunal’s email to the applicant dated 5 July 2017.
Having regard to the above matters, I am satisfied that the Tribunal complied with the requirements set out in s 425A of the Act. In particular, the invitation to attend the hearing:
(a)was addressed to the applicant;
(b)clearly indicated the date, time and means by which the applicant could attend the Tribunal hearing;
(c)was sent to the applicant’s email address provided by the applicant in her review application, noting that the email notification is a method approved by s 441A(5)(b) of the Act;
(d)was provided to the applicant 21 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.
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 25 July 2017), regardless of whether the document was actually received.[21]
[21] SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271 at [36].
As was also explained in BHG22 (citing Sun[22] and Mohammed[23]), 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. 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.
[22] Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901.
[23]Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268.
I am satisfied that the applicant in this matter was properly invited to attend the Tribunal hearing.
No arguable case of error arises in this regard.
The obligation to notify the applicant of the Non-Appearance Decision - s 426B
If the Tribunal makes a decision to dismiss an applicant’s review application by reason of that applicant’s failure to attend the scheduled hearing, in accordance with s 426B(2) of the Act, it is procedurally fair that the Tribunal make a written statement that sets out the decision[24] and the reasons for that decision.[25]
[24] s 426B(2)(a) of the Act.
[25] s 426B(2)(b) of the Act.
Sections 426B(5) and 426B(6) of the Act also obligate the Tribunal to notify the applicant of the non-appearance decision in a specified way. Relevantly:
(5)The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
Here, the Tribunal did as it was required to under ss 426B(2), (5) and (6) of the Act.
The Tribunal prepared a written statement of its Non-Appearance Decision dated 15 August 2017 which clearly indicated both its decision to dismiss the applicant’s review proceedings and the reasons for arriving at such decision. A copy of the Decision Record was sent to the applicant on the same day as the decision being made, and thus the applicant was notified of the dismissal well within the required 14-day period.
As the Decision Record was sent via email to the applicant’s nominated email address, the Tribunal notified the applicant of its Non-Appearance Decision using a method specified in s 441A of the Act. It can be seen from correspondence sent from the Tribunal to the applicant on 15 August 2017 that included in that email notification was a statement informing the applicant of the option to reinstate her review application. Accompanying the Tribunal’s email was an information sheet containing information about “dismissal of applications” and the necessary steps to take to have an application reinstated.
In complying with the requirements under s 426B of the Act, I am satisfied the Tribunal afforded the applicant procedural fairness.
Accordingly, no arguable case of jurisdictional error arises in relation to the Tribunal affording the applicant procedural fairness.
Proposed ground three - whether the Tribunal relied on incorrect information and used facts from some other case in its decision
By ground three, the applicant contends that the Tribunal relied on incorrect information and decided the applicant’s case using facts from “some other case”.
This ground simply cannot succeed in circumstances where the Tribunal made clear in its Non-Appearance decision that it did not conduct a review of the delegate’s decision due to the applicant’s failure to attend the scheduled hearing. That is, the Tribunal did not proceed to engage in any claims advanced by the applicant as it “decided to dismiss the application without further consideration of that application or the information” before it.
This ground establishes no arguable case of jurisdictional error.
Proposed ground four - whether the Tribunal failed to ask the applicant questions about types of harm relevant to her case
The applicant submits in ground four that the Tribunal failed to ask her questions about “the types of harm relevant in my case”.
For similar reasons given above, this ground does not raise any arguable case of jurisdictional error given no review was conducted by the Tribunal by virtue of the review application being dismissed for the applicant’s non-appearance.
Relevantly, as submitted by the first respondent, the applicant had lost the opportunity to be asked any questions by the Tribunal upon her failure to appear at the scheduled Tribunal hearing.
This ground establishes no arguable case of jurisdictional error.
Proposed ground five - reference to the Administrative Appeals Tribunal Act 1975
In this proposed ground, the applicant simply refers to s 44 of the Administrative Appeals Tribunal Act 1975 and states that in accordance with that provision she is authorised to appear in this Court.
It is clear that no reference is made to any finding made or conduct engaged in by the Tribunal. As such, this ground does not constitute a ground of judicial review that I can consider.
Whether the Tribunal erred by confirming the decision to dismiss the application
Insofar as the applicant raises concerns in relation to the Tribunal’s Confirmation Decision, the Court notes that the applicant was notified (by email) of the Non-Appearance Decision on 15 August 2017.
The Court notes that, when the applicant was advised that her application had been dismissed, she was also advised that she could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (that is, by 29 August 2017). Relevantly, the letter to the applicant provided as follows:
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 29 August 2017. 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.
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 30 August 2017.
No jurisdictional error arises in relation to the Tribunal’s Confirmation Decision.
Conclusion regarding the merits of the substantive application
None of the proposed grounds of review argued by the applicant establish an arguable case of jurisdictional error.
I reiterate here that the applicant had been properly invited to attend the Tribunal hearing and had conceded in oral submissions that she knew of the scheduled hearing, but did not take any action to attend due to circumstances at the time. Because of her failure to attend, the Tribunal had an evident and intelligible justification to dismiss her application pursuant to
s 426A(1A)(b) of the Act and exercised its discretion in that regard reasonably.[26]
[26] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [97]; EBS17 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [22].
Following its Non-Appearance Decision, the Tribunal not only complied with its obligation to notify the applicant of the Non-Appearance Decision (as required by s 426B(5) of the Act), but sent the applicant an email attaching a letter which contained information about how the applicant could have her application reinstated (as required by s 426B(6) of the Act).
The applicant did not seek reinstatement and the Tribunal dismissed the application for review as required to under s 426A(1E).
In all of the foregoing circumstances, I find that the substantive application is without merit, and has no prospects of success.
CONCLUSION
The overarching consideration for the Court is whether it is in the interests of the administration of justice to grant the extension of time in the circumstances of the case.
Here, the significant 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, 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.
COSTS
The first respondent seeks costs against the applicant in the scale amount of $4,189.38.
Given the circumstances of this case, and noting that the applicant was wholly unsuccessful in her application, I also order that the applicant pay the first respondent’s costs in the amount of $4,189.38.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 30 June 2023
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