DPY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3309

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPY19 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3309

Catchwords:

MIGRATION – Decision by Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Whether time should be extended to an applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – whether Administrative Appeals Tribunal properly exercised its discretion under s.426A of the Migration Act 1958 (Cth) – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.441A, 477, 425, 425A, 426A, 426B

Cases cited:
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
MZABP v Minister for Immigration & Ors [2015] FCA 1391
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZOZG v Minister for Immigration and Citizenship [2011] FCA 756
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Minister for Immigration and Citizenship v Li (2013) CLR 332
AFA17 v Minister for Immigration and Border Protection [2018] FCA 488
Re Commonwealth of Australia;Ex Parte Marks [2000] HCA 67

Applicant: DPY19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APEALS TRIBUNAL

File Number: SYG 2446 of 2019

Judgment of: Judge Emmett

Hearing date: 18 November 2019

Date of Last Submission: 18 November 2019

Delivered at: Sydney

Delivered on: 18 November 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of a Mandarin interpreter

Solicitor for the Respondents: Mr Jonathon Hutton
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2446 of 2019

DPY19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 23 September 2019, the applicant seeks that time be extended to her to see to seek judicial review of a decision of the Administrative Appeals Tribunal dated 31 July 2019 (“the Tribunal”). 

2. On 31 July 2019, the Tribunal confirmed its dismissal on 15 July 2019 of the applicant’s application for review of a decision of a delegate of the first respondent dated 20 February 2017 refusing the applicant a protection visa, by reason of the applicant’s failure to attend the scheduled hearing before the Tribunal.

3. Section 477(1) of the Migration Act 1958 (Cth) (“the Act”) provides that an application for judicial review must be filed within 35 days of the Tribunal's decision.

4. However, s.477(2) of the Act provides that the Court may extend time to seek judicial of the Tribunal's decision if the Court is satisfied that it is necessary in the interests of justice to do so. The application for an extension of time was made to this Court 20 days beyond the statutory period.

5. The applicant was born in 1995 and is a citizen of China. She first arrived in Australia on 23 April 2012 on a student subclass 571 visa and on 5 October 2016 she applied for a protection visa. On 13 February 2017, the applicant failed to attend a scheduled interview with a delegate of the first respondent. And on 20 February 2017, the delegate refused to grant the applicant a protection visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia owes protection obligations.

6. The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter. The applicant confirmed that she had attended a directions hearing before a registrar of this Court on 17 October 2019, on which occasion she was given leave to file and serve any further evidence and submissions in support of her application.  The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language.

7. The applicant confirmed that she has not filed any further documents either in accordance with the Court’s orders or otherwise and she has no further documents to provide to the Court this morning. 

8. I explained to the applicant that of particular significance to the Court in considering her application for an extension of time, would be the length of the delay, her explanation for the delay, any prejudice to the first respondent and the prospects of success of her substantive application for judicial review.

9. In SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at 451 [46] – [48], Foster J noted that s.477 of the Act did not set out any particular criteria which must be satisfied as part of the concept of the interests of the administration of justice, but identified factors which a Court will ordinarily take into account, which includes:

   i)Whether there has been a reasonable and adequate explanation for the delay.

   ii)Whether there is any prejudice to the Minister.

   iii)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

10. The applicant confirmed that her explanation was contained in her grounds of application for an extension of time, filed on 23 September 2019, in the following terms:

    “1. The email went into the junk mail, so I did not see the email until today.

    2. I made my application as soon as possible. I hope you can accept my application.”

11. The applicant said nothing further by way of explanation. It is the applicant’s responsibility to ensure that she is contactable at all times by the Department. The Court Book makes clear that the applicant responded to an email sent to her at her email address on 7 March 2017. In circumstances where there is evidence before the Court that the applicant responded to the Tribunal’s communications early in the period of her review on 7 March 2017, I am satisfied that the applicant’s email was a working email in respect of which the applicant did, in fact, receive emails and to which she responded. It is for the applicant to ensure that all contact details provided are current. It is the applicant’s responsibility to ensure that where she has provided an email address to the Tribunal for correspondence that she checks that with sufficient regularity to ensure that she is able to meet any time constraint. The Tribunal had given her notice of the relevant time periods in relation to her application. Her explanation is entirely unsatisfactory and inadequate.

12. I accept that the delay was not long and that there is no prejudice to the Minister if time was extended to the applicant. I do note that the absence of prejudice to the Minister in itself is insufficient to warrant a grant of an extension of time (see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]).

13. However, in deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176 (“Hunter Valley”); SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 (“SZNYE”) at [16] per Katzmann J). In MZABP v Minister for Immigration & Ors [2015] FCA 1391 at [63], Mortimer J stated relevant principles that were approved by the Full Court of the Federal Court of Australia in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21] per Tracey, Perry and Charlesworth JJ, as follows:

    “63. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]- [48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.”

14. If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 (“SZSDA”) at [39] per Foster J).

15. I explained to the applicant that in considering the prospects of success of her application for judicial review, the only issue before the Court is whether or not the decision of the Tribunal is made according to law or is affected by a mistake that goes to its jurisdiction.

16. The applicant confirmed that in relation to her substantive application she relied on the following grounds:

    “1. The Tribunal officer refused my application because I could not provide enough evidence to support my claims.

    2. The Tribunal officer did not accept that I was persecuted by Chinese government.

    3. I have left China and can not provide more evidence for my claims.

    4. If I return back to China, I will be harmed again.”

17. The applicant’s grounds appear to misunderstand the manner in which the Tribunal proceeded in circumstances where she failed to attend the Tribunal hearing I explained to the applicant that if the Tribunal’s findings were open to it and that it had conducted its review in accordance with the relevant legislative scheme, then the fact that the applicant may disagree with its conclusion does not by itself demonstrate an error going to the Tribunal’s jurisdiction.

18. On 2 March 2017, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal. That document provided the applicant’s mobile telephone number and an email in the section headed Correspondence Details. On 6 March, the Tribunal emailed the applicant at the identified email address in her review application, to which the applicant responded on 7 March 2017 by email.

19. By email sent to the applicant’s email address for correspondence dated 26 June 2019, the Tribunal invited the applicant to attend a hearing before it on 15 July and provided the time and location of the place where the interview would be conducted. The invitation notified the applicant that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone. The letter informed the applicant that if she was not able to attend the hearing, she needed to advise the Tribunal as soon as possible. And any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. 

20. The letter went on to inform the applicant that if she did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it and may dismiss her application for review without any further consideration of the application or the information before the Tribunal. The letter went on to state that a dismissed case can be reinstated if the Tribunal considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. 

21. The letter stated that if the Tribunal confirmed the dismissal, the decision under review is taken to be affirmed. The letter provided the contact details of a translating and interpreting services for the applicant and invited the applicant to make any inquiries that she wished. The letter provided both the email address of the Tribunal and its national inquiry line telephone number. 

22. The letter also contained information about Administrative Appeals Tribunal hearings and, essentially, repeated the information contained in its letter to which the information sheet was attached. 

23. The Court Book disclosed case notes sent from the Tribunal in relation to the applicant’s application for review before the Tribunal. Those case notes disclose that an SMS hearing reminder was sent to the applicant’s telephone number on 8 July 2019 and a further reminder sent to the applicant on 12 July 2019. 

24. The applicant’s hearing had been set down for 15 July 2019, as stated above.  The applicant failed to attend the hearing on 15 July. On 15 July 2019, by email, the Tribunal sent a letter to the applicant informing her that, by reason of her failure to attend the scheduled hearing, her application for review had been dismissed. The letter informed the applicant that she may apply in writing for reinstatement by 29 July 2019, that any reinstatement application should set out the reasons why she failed to appear at the hearing and should provide any other information that she wish the Tribunal to take into consideration when deciding whether to reinstate her application. The letter also attached an information sheet about dismissal of applications. That information sheet stated that an application for reinstatement must be made within 14 days after receiving notice of the dismissal decision. If the applicant failed to lodge an application for reinstatement within the 14-day period, the Tribunal must confirm the decision to dismiss her application. 

25. In its statement of reasons dated 15 July 2019, the Tribunal noted that the applicant had been invited under s.425 of the Act to appear before the Tribunal on 15 July 2019 at 10 am, that the invitation stated that if the applicant 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 noted that the applicant had been sent two SMS reminders about the hearing, five business days and one business day before the scheduled hearing. The Tribunal then noted that the applicant did not appear before it on the scheduled, on the day and at the scheduled time and place. The Tribunal was satisfied that the review application had complied with the relevant statutory scheme. Further, the invitation had not been returned to sender.

26. The Tribunal found there was no satisfactory reason for the nonappearance given by the applicant, and in the circumstances, decided to dismiss the application without further consideration of the application or the information before the Tribunal. 

27. There is no evidence before the Court of any attempt by the applicant to seek reinstatement of her application or to provide any information to the Tribunal for her failure to appear. Nor does the applicant suggest otherwise to this Court this morning.

28. On 2 August 2019, an email was sent to the applicant at her email address, advised to the Tribunal for correspondence, attaching a copy of a letter informing the applicant that the decision under review dated 15 July 2019 was confirmed. Again, the letter attached an information sheet about migration review decisions. That information sheet informed the applicant that she could apply to this Court for judicial review but she must do so within 35 days of the date of the decision. 

29. The information sheet also stated that if the applicant required an extension of time, she must ask for it in the application and explain why. 

30. The email also attached the decision record of the Tribunal dated 31 July 2019. In its decision, the Tribunal referred to its decision on 15 July 2019 dismissing the application for review 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. The Tribunal noted that the applicant had been notified of the dismissal decision and given a copy of the written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5) of the Act.

31. Relevantly, s.426A of the Act refers to the manner in which an applicant is to be invited to appear before the Tribunal, including reference to s.425 of the Act, which provides that 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. Section 425A of the Act specifies the information that must be contained in that invitation, including the day on which and the time and place at which the applicant is scheduled to appear.

32. The Tribunal noted that the applicant had been advised at the time of notification of the dismissal decision on 15 July 2019, that reinstatement of the application must 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. 

33. The Tribunal stated that as the applicant did not apply for reinstatement of the application within the 14 day period, the Tribunal must confirm the decision to dismiss the application. The Tribunal then affirmed the delegate’s decision under review refusing the applicant a protection visa. 

34. As is clear from the history that I have recited above, the Tribunal complied with the statutory regime in inviting the applicant to attend the hearing. In making its decision on 15 July 2019 to dismiss the application before it, the Tribunal had satisfied itself that the applicant had been notified and invited to a hearing in accordance with the statutory regime, including that the applicant was given an invitation to a hearing in accordance with s.441A(5) of the Act.

35. The Tribunal’s decision to dismiss for non-appearance on 15 July 2019 is without error. The Tribunal informed the applicant of the need to seek reinstatement within 14 days. As stated above, there was no such application received by the applicant. On 2 August 2019, the Tribunal sent to the applicant a copy of the decision, dated 31 July 2019, affirming the decision under review on the basis that there had been no application for reinstatement received by the applicant within the 14 day period.

36. Again, that decision by the Tribunal is without error.

37. As stated above, s.477(2) of the Act provides that the Court can extend a 35 day period if the Court is satisfied that it is necessary in the interests of the administration of justice to do so.

38. In circumstances where it would appear that the Tribunal’s decisions of 15 July and 31 July were without error, the applicant has insufficient prospects of success such that time should be extended to her. There is nothing to suggest, on the face of the Tribunal’s decision record, that the Tribunal acted unreasonably in exercising the power under s.426A of the Act. In the case before this Court the Tribunal’s reasons for exercising its discretion as it did and in the circumstances before it were not arbitrary, capricious or unreasonable (see Minister for Immigration and Citizenship v Li (2013) CLR 332). The Tribunal used the email address provided by the applicant for correspondence and used by the applicant in correspondence with the Tribunal. The Tribunal sent 2 SMS hearing reminders to the applicant leading up to the hearing.

39. Further, I have regard to the fact that the applicant did not appear before the delegate. And on the documents contained in Exhibit 1R, I accept that she has had otherwise limited engagement with her substantive application.

1. Where the application was dismissed for nonappearance, the Tribunal is not required to assess the merits of the application (see AFA17 v Minister for Immigration and Border Protection [2018] FCA 488 at [21] per Rangiah J). In the absence of any reinstatement application and the passing of the 14 day period, the Tribunal was bound to confirm the decision to dismiss the application pursuant to s.426A(1E) of the Act.

2. The Court should also have regard to the significant public interest in the finality of administrative decisions (see Re Commonwealth of Australia;Ex Parte Marks [2000] HCA 67 at [15]-[17] per McHugh J).

3. Whilst I make no final finding as to whether or not the Tribunal’s decision is affected by a jurisdictional error, none is apparent on the face of the Tribunal’s decision record of either 15 July or 31 July 2019 and none has been identified by the applicant this morning.

4. In the circumstances and balancing all relevant factors together, it is not necessary in the interests of justice that time be extended to the applicant and the applicant’s application for an extension of time should be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date:  26 November 2019