DQT20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 330
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQT20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 330
File number: MLG 2875 of 2020 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 3 May 2023 Catchwords: MIGRATION – Extension of time application made pursuant to s 477 of the Migration Act – applicant filed 1,226 days out of time – insufficient explanation as to delay – substantial delay – whether there is any merit to the grounds of review on an impressionistic assessment – lack of merit in substantive application – extension of time application dismissed – costs ordered Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43C and 44
Migration Act 1958 (Cth) ss 36(2), 426A(1A)(a) and 477
Federal Circuit Court Rules 2001 (Cth) sch 1, pt 3, div 1, item 2
Cases cited: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submissions: 11 August 2021 Date of hearing: 11 August 2021 Place: Melbourne (by videoconference) The Applicant: Appeared in person Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 2875 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQT20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
3 may 2023
THE COURT ORDERS THAT:
1.The Applicant’s application for an extension of time made pursuant to section 477(2) of the Migration Act 1958 (Cth) is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.
3.The name of the First Respondent be amended to “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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Originating Application filed in this Court on 6 August 2020 (Substantive Application), the Applicant seeks judicial review of the Administrative Appeals Tribunal (Tribunal) decision, dated 28 March 2017 (Tribunal's Decision).[1]
[1] Court Book (CB) 93.
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to refuse the Applicant a Protection (Subclass 866) Visa (Visa).
In the Substantive Application, the Applicant seeks an extension of time (Extension of Time Application) pursuant to section 477(2) of the Migration Act 1958 (Cth) (Migration Act) to pursue the Substantive Application. Pursuant to Orders made by Registrar Carlton of this Court on 22 January 2021 (22 January 2021 Orders), the matter was listed for hearing of the Extension of Time Application on 11 August 2021.[2]
[2] 22 January 2021 Orders, Order 4.
This matter was heard on 11 August 2021 and proceeded by way of videoconference on Microsoft Teams, as a result of the health protocols adopted by the Federal Circuit Court of Australia (as the Court then was) at the time due to the ongoing COVID-19 pandemic (Extension of Time Hearing).
At the Extension of Time Hearing the Applicant was unrepresented before the Court and appeared with the assistance of an interpreter in the English and Malay languages.
BACKGROUND
The Court has before it a Court Book numbering 110 paginated pages. The Court notes that the Minister's written submissions, filed on 28 July 2021 (Minister's Submissions), at [4] to [10], accurately summarise the factual history of this matter. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
The Applicant is a female citizen of Malaysia, who arrived in Australia on 3 November 2015 as the holder of a Subclass 601 (Electronic Travel Authority) visa.[3]
[3] CB 57.
On 4 May 2016, the Applicant applied for the Visa (Visa Application), the Visa Application being dated 4 April 2016. The Applicant’s claims were set out in response to questions on the Visa Application ‘Form 866C’.[4] The Applicant claimed to be a Muslim and from a Muslim family, that she had a boyfriend who was Chinese and not Muslim, and that her family did not approve of the relationship. The Applicant further claimed that her family would try to make her boyfriend convert to Islam, and also claimed that they would try to separate her from her boyfriend.[5]
[4] CB 13-37.
[5] CB 32-34.
On 6 June 2016, the Delegate refused to grant the Applicant the Visa.[6] The Delegate found that the Applicant had pointed to harm she feared may occur to her boyfriend but had not claimed that she was at risk of any harm which would amount to serious or significant harm. The Delegate accordingly was not satisfied that subsections 36(2)(a) or (aa) of the Migration Act were met (Delegate's Decision).
[6] CB 54-64.
On 30 June 2016, the Applicant applied to the Tribunal for review of the Delegate’s Decision.[7] The Applicant did not appoint a representative or authorised recipient, and provided her own postal address, email address and telephone number for the purpose of receiving correspondence from the Tribunal.
[7] CB 65-66.
On 6 March 2017, the Tribunal sent a letter to the Applicant's nominated email address inviting her to attend a hearing scheduled for 27 March 2017.[8] The Tribunal sent two text messages to the Applicant, on 20 March 2017 and 24 March 2017, reminding her of the upcoming hearing.[9] The Applicant did not respond to the hearing invitation and did not otherwise contact the Tribunal.
[8] CB 77-79.
[9] CB 84.
On 27 March 2017, the Applicant failed to appear before the Tribunal.[10]
[10] CB 85-86.
On 28 March 2017, the Tribunal affirmed the Delegate's Decision to refuse to grant the Applicant the Visa.[11]
[11] CB 89, 93-96.
TRIBUNAL’S DECISION
The Tribunal's Decision appears at pages 93 to 96 of the Court Book. The Minister's Submissions, at [10], accurately summarise the Tribunal's Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.
The Tribunal proceeded pursuant to s 426A(1A)(a) of the Migration Act to make a decision on the review without taking any further action to allow or enable the Applicant a further opportunity to appear before it. This was noted by the Tribunal to be appropriate in light of the number of unsuccessful attempts to contact the Applicant in relation to her review by SMS and email.[12]
[12] CB 94-95, [7]-[8].
The Tribunal found that the Applicant's claims were vague and lacking in detail and pointed to those issues it would have asked her about had she attended a hearing, including about her relationship. On the material before it, the Tribunal was not satisfied that the Applicant had suffered any serious or significant harm in the past and was not satisfied that she would suffer serious or significant harm if she returned to Malaysia.[13]
[13] CB 95, [9].
PROCEEDINGS BEFORE THE COURT
It was not until 6 August 2020 that the Applicant filed the Substantive Application.[14] Pursuant to Order 2 of the 22 January 2021 Orders, the Applicant was provided an opportunity to file any amended application with proper particulars of the grounds of the application, a supplementary court book and any written submissions by 25 December 2020. The Applicant did not avail herself of this opportunity.
[14] CB 97-102.
The materials before the Court include: the Court Book; the Substantive Application, which includes the Extension of Time Application; the Affidavit of the Applicant, signed on 5 August 2020 and filed 6 August 2020; the Minister’s Submissions; and a List of Authorities filed by the Minister on 6 August 2021.
The Court has also considered the transcript of the Extension of Time Hearing, where both the Applicant, through the assistance of an interpreter, and the Minister’s Solicitor made oral submissions.
The Applicant’s grounds in the Extension of Time Application are as follows:
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.
(Without alteration)
The Applicant’s grounds of review in the Substantive Application are as follows:
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 ABOUT THE TYPES OF HARM RELEVENT 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.
(Without alteration)
LEGISLATIVE PROVISIONS
Section 477 of the Migration Act (as in force at 6 August 2020 when the Extension of Time Application was made) provides in relation to extensions of time:
477 Time limits on applications to the Federal Circuit Court
(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considered appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
[…]
The Court notes that s 477 of the Migration Act is identical to the provision currently in force.
The Applicant has not satisfied the requirements of s 477(1) of the Migration Act, as the Substantive Application was filed outside of the prescribed 35 day time limit. Section 477(2) provides that the Court may order that the 35-day prescribed period be extended if the conditions in section 477(2) are met.
The Minister has conceded that the Substantive Application includes the Extension of Time Application which is in writing, and therefore the requirement contained in s 477(2)(a) is satisfied.[15]
[15] Minister’s Submissions, [13].
In relation to the requirement in s 477(2)(b) that the Court be ‘satisfied that is necessary in the interests of the administration of justice’ to grant an extension of time, the Minister has submitted that the Court will most often consider the following factors:
(a)The extent of the delay and reasons for the delay;
(b)Any prejudice which would be suffered by the Minister, should the Court assent to the extension of time application; and
(c)The merits of the substantive application to be considered.[16]
[16] Minister’s Submissions, [15], [17]-[27].
The Court will now consider these matters in turn.
CONSIDERATION
Extent and Reasons for Delay
The Substantive Application was filed in this Court on 6 August 2020.
As the Tribunal’s Decision was made on 28 March 2017, the Substantive Application was required to be filed on or before 25 April 2017, being within 35 days of the ‘migration decision’, pursuant to s 477(1) of the Migration Act.
The Court notes that the Substantive Application was filed 1,226 days out of time, which is a delay of some 3 years and 131 days. Therefore the extent of the Applicant’s delay is significant. However, the Court must also consider the Applicant’s explanation for the delay.
In the Extension of Time Application, the Applicant said that her lack of financial resources was the reason for her delay. During the Extension of Time Hearing, the Applicant made oral submissions regarding the delay, as follows:
INTERPRETER: […] I did not know about 35 days – I had to make a application within 35 days. Also during that time I did not have any money, and I had to collect the money, and, furthermore, on 2018 I was pregnant, and I had to deliver my child, and when I was working in the farm my friends told me I can appeal my decision on my visa and – at the court to try and get work rights.
[…]
INTERPRETER: After I gave birth and I was working in the farm and my friends told me I can try to get work rights via the court because I need work rights so that I can get a job.[17]
[17] Transcript P9:L21-25, L29-31.
There has been no supporting evidence put before the Court to substantiate these claims. Likewise, there has been no meaningful engagement by the Applicant with the Court regarding the options available to her, such as fee waiver schemes.
Overall, the Court considers that the delay in this case was extremely significant and there has been insufficient explanation or evidence supporting the explanation for the delay.
Prejudice to the Minister
The Minister concedes that there is no prejudice to the Minister, save for the costs of having to defend an unmeritorious application.[18] The Court considers that this weighs in favour of the grant of an extension of time; however, as noted by the Minister, the lack of prejudice to the respondent does not itself justify the grant of an extension of time.
[18] Minister’s Submissions, [19].
Merits of the Substantive Application
The Full Court of the Federal Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 (DHX17) has observed, at [68]:
68 […] As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. […]
(Emphasis added)
The grounds set out in the Substantive Application are replicated at [21] of these Reasons for Judgment. No further material has been filed by the Applicant, despite the Court’s provision of the opportunity to do so. The grounds in the Substantive Application therefore remain unparticularised. I will now give an ‘impressionistic consideration’ to the merits of each ground of review in turn, noting that the question before the Court is whether any of the grounds are ‘arguable, ‘reasonably arguable’, ‘sufficiently arguable’ or have ‘reasonable prospects of success’.[19]
[19] DHX17 at [17], citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63].
Grounds 1 and 2
Ground 1 asserts that the Tribunal ‘[failed] to consider many vital integer of [the Applicant]’s case’. Ground 2 claims that the Tribunal ‘deprived [the Applicant] of procedur[al] fairness’. Neither of these grounds are sufficiently particularised and no evidence has been put before the Court, whether written or oral, to substantiate them. Akin to Mortimer J’s comments (as Her Honour then was) in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62], the grounds ‘on their face…are plainly hopeless’, and therefore cannot succeed in the context of an extension of time application.
Grounds 1 and 2 must be dismissed.
Ground 3
Ground 3 claims that at the Tribunal hearing, the Tribunal Member ‘[…] relied on incorrect information and decided [the Applicant’s] case using facts [from] some other case’.
As the Applicant has not particularised the incorrect information which was allegedly relied on by the Tribunal, and there appears on the face of the evidence no information pertaining to other cases upon which the Tribunal made its decision, Ground 3 is dismissed.
Ground 4
Ground 4 claims that at the Tribunal hearing, the Tribunal Member ‘failed to ask [the Applicant] questions about the types of harm relevant in [her] case’.
The Court notes that the Applicant failed to appear at the Tribunal hearing, despite the Tribunal’s correspondence alerting her to the hearing time and date, discussed at [11] and [12] of these Reasons for Judgment. The Tribunal proceeded to make the Tribunal’s Decision without taking any further action to allow or enable the Applicant to appear before it, as permitted by s 426A(1A)(a) of the Migration Act. As the Tribunal validly exercised its power pursuant to s 426A(1A)(a) and was not required to reschedule the hearing to allow the Applicant another opportunity to appear and give evidence, Ground 4 cannot be made out and must be dismissed.
Ground 5
Ground 5 refers to the Applicant’s right to seek judicial review pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). This Ground does not assert or particularise any error of law made by the Tribunal and it is noted that the provision cited by the Applicant likewise does not apply to her case, as the Tribunal’s Decision was an ‘AAT Migration Decision’ for the purposes of s 43C of the AAT Act. In any case, the Applicant made the Substantive Application pursuant to s 477 of the Migration Act which is the reason this proceeding is now before this Court. Ground 5 therefore must be dismissed.
CONCLUSION
Due to the Applicant’s failure to provide substantive evidence and an explanation for the extensive delay in filing the Substantive Application, and absence of any merit in the Substantive Application, the Court is not satisfied that it is in the interests of the administration of justice to extend the time limit for filing pursuant to section 477(2) of the Migration Act.
The Extension of Time Application is therefore dismissed.
At the Extension of Time Hearing, the Minister sought costs fixed in the sum of $3,737.[20] This amount is in accordance with the costs allowed in pt 3, div 1, item 2 of sch 1 to the Federal Circuit Court Rules 2001 (Cth), applicable at the time of the Extension of Time Hearing. Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $3,737.
[20] Transcript P12:L28-29.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 3 May 2023
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