DRQ22 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1342
•6 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DRQ22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1342
File number(s): BRG 503 of 2022 Judgment of: JUDGE COULTHARD Date of judgment: 6 December 2024 Catchwords: MIGRATION – Protection (Class XA) (Subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – application for an extension of time to bring judicial review proceedings under s 477(2) of the Migration Act 1958 (Cth)– whether extension of time is necessary in the interests of the administration of justice – length of delay – prospects of success – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 66(1), 412(1)(b)476(1), 477(1), 477(2), 494B(5)(b), 494B(5)(d), 494C(5),
Migration Regulations 1994 (Cth) reg 2.16(3), 4.31(2)
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
CQP15 v Minister for Immigration and Border Protection [2017] FCA 854
Lo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 376
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at 598
Pohahau v Minister for Home Affairs [2019] FCA 1243
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration & Border Protection [2014] FCA 1243
Tu’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: 48 Date of last submission/s: 2 December 2024 Date of hearing: 2 December 2024 Place: Brisbane Solicitor for the Applicant: The applicant appeared unrepresented. Solicitor for the First Respondent: Ms Van der Wolf of Clayton Utz appeared on behalf of the first respondent. Solicitor for the Second Respondent: The second respondent filed a submitting appearance save as to costs. ORDERS
BRG 503 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DRQ22
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $3930.00.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal found it did not have the jurisdiction to review a decision of a delegate of the Minister for Immigration, (as the Minister was then called) (“the delegate”), to refuse to grant a Protection (Class XA) (Subclass 866) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of Indonesia. The applicant arrived in Australia on 29 December 2018 on a Visitor Visa (Court Book (“CB”) 16).
On 28 February 2019, the applicant applied for a Protection (Class XA) (Subclass 866) visa (“the visa”) (CB 1-34). In the application, the applicant provided an email address at which he stated the Department could contact him (“the nominated Yahoo email address”) (CB 12).
On 5 October 2020, the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant was a person to whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) (“the delegate’s decision”) (CB 66-69).
On 5 October 2020, the delegate notified the applicant of the delegate’s protection visa decision by letter attached to an email sent to the applicant’s nominated Yahoo email address (“the notification of decision letter”) (CB 62-69). In the notification of decision letter, the delegate notified the applicant that he could apply to the Administrative Appeals Tribunal for merits review of the delegate’s decision within the period of 28 calendar days, commencing on the day he is taken to have received this letter. In the notification of decision letter, the delegate further stated that as the letter was sent to the applicant by email, he is taken to have received it at the end of the day it was transmitted.
Application for review to the Administrative Appeals Tribunal
On 2 December 2020, the applicant applied to the Tribunal for review of the delegate’s decision (CB 70-71). In the application, the applicant provided an email address at which the Tribunal could contact him (“the nominated Gmail address”).
On 2 December 2020, the Tribunal sent the applicant an email addressed to the nominated Gmail address attaching a letter acknowledging receipt of the application (CB 72-79). In the letter, the Tribunal advised the applicant that the validity of the application had not yet been assessed and that the applicant would be advised if it appeared that the application may not be valid. The Tribunal requested the applicant to immediately tell the Tribunal if there was a change in his contact details.
On 4 December 2020, the Tribunal sent the applicant an email addressed to the nominated Gmail address attaching a letter inviting the applicant to comment on the validity of the application (CB 80-82). The Tribunal stated that the application had not been lodged within the relevant time limit pursuant to reg 4.31(2) of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal stated that the relevant time limit was 28 days commencing on the day the applicant was notified of the decision which period of time commences on, and includes, the day the applicant is taken to have been notified of the decision. The Tribunal further stated that as the primary decision was emailed to the applicant on 5 October 2020, the last day for lodging the application was 1 November 2020. The Tribunal stated that as the application had not been received until 2 December 2020, it appeared to be out of time but that this was a matter which must be determined by a member. The Tribunal invited the applicant to comment by 18 December 2020.
On 13 December 2020, the applicant responded by email to the Tribunal providing reasons for the delay in filing the application (CB 83). The applicant told the Tribunal he had not received the delegate’s decision because:
(a)he had been unable to login to the Yahoo email account that he had used to apply for the visa; and
(b)his failed login attempts triggered a password reset, however his email was linked to a pre-paid Indonesian mobile phone number in Indonesia that was discontinued, and it made it really difficult for him to receive the code to re-access the Yahoo email account.
On 5 March 2021, the Tribunal considered the application for review and held that it did not have jurisdiction to deal with the application because it had not been lodged within 28 days commencing on the day the applicant was notified of the delegate’s decision. The Tribunal provided written reasons for its decision (“Decision”) (CB 100-102).
The Tribunal made the following findings (Decision [3]-[5]; [7]):
a. The applicant was notified of the delegate’s decision on 5 October 2022 in accordance with the statutory requirements by letter to him dispatched by email;
b. Pursuant to s 494C of the Act, the applicant is taken to have been notified of the decision on 5 October 2020;
c. The prescribed period to apply for review ended on 1 November 2020;
d. The Tribunal wrote to the applicant inviting him to comment on the validity of the application;
e. The applicant responded to the Tribunal’s invitation explaining that he had forgotten the password of his Yahoo email which the Department used to notify him and that he only discovered there was an issue when he checked the visa status on VEVO; that he then reset his password but it was difficult to do so as the token code to reset it was sent to an Indonesian mobile number which was no longer in use and that because of these difficulties his application was out of time.
The Tribunal said that it acknowledged the applicant’s difficulty in re-setting his password but said that the Tribunal has no discretion to extend the timeframe a review may be lodged within (Decision [6]).
Accordingly, the Tribunal decided that as the application was not received by the Tribunal until 2 December 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in the matter (Decision [8]-[9])
On 9 March 2021, the Tribunal notified the applicant of the Decision by email sent to the nominated Gmail address (CB 95-102). The email attached a copy of the reasons for decision and a fact sheet. The fact sheet stated, inter alia, that:
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decision. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 16 November 2022. The applicant filed an affidavit in support of the application. The affidavit does no more than attach a copy of the Tribunal’s Decision.
Pursuant to s 477(1) of the Act, the application was required to be made within 35 days of the Tribunal’s Decision, that is by, 12 April 2021. Accordingly, the application was filed 586 days out of time.
On 21 February 2023, procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The first applicant appeared in person unrepresented. He had the assistance of an interpreter in the Indonesian and English languages. Prior to the hearing commencing, the applicant was given time to enable the interpreter to translate for him the first respondent’s written submissions.
The material before the Court included the application, the applicant’s affidavit, the first respondent’s response, the first respondent’s written submissions and the Court Book. The Court confirmed with the applicant that he had a copy of this material with him. The Court Book was made an exhibit in the proceedings.
The Court explained to the applicant that as his application for judicial review was not filed within 35 days of the date of the Tribunal’s decision the purpose of the hearing was to consider whether the Court should exercise its discretion to extend time for the filing of his application for judicial review. The Court explained that the factors it would consider were length of the delay and the explanation for the delay; any prejudice to the parties; and, whether the proposed grounds of review had any prospects of success were an extension of time to be granted. The Court explained to the applicant that it would consider prospects of success of the proposed substantive grounds of review set out in the application for review at an impressionistic level.
The applicant did not file an affidavit or any written submissions. The applicant was given the opportunity to make oral submissions in support of the application to extend time and in response to the first respondent’s oral submissions.
CONSIDERATION
Pursuant to s 477(2) of the Act, the Court may, by order, extend the time for the making of an application for a remedy to be granted in the exercise of the Court’s jurisdiction under s 476 of the Act. Section 477(2) provides:
2. The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate, if:
a.an application for that order has been made in writing to the Federal 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The phrase “necessary in the interests of the administration of justice” is ‘deliberately broad’ and it is in each case for the judge hearing the extension of time application to determine which of a range of potentially relevant factors are to be taken into account in evaluating whether the interests of the administration of justice make it necessary for an extension of time to be granted in that particular case (Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [39] (“Katoa”) per Gordon, Edelman and Steward JJ).
Nevertheless, factors commonly regarded include (Katao at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ; [40] per Gordon, Edelman and Steward JJ ):
a. the length of the delay;
b. the explanation for the delay;
c. any prejudice to the respondent or third parties;
d. any prejudice to the administration of justice as a result of the delay;
e. the merits of the underlying application.
The Court has taken the approach of considering those factors in determining whether it is satisfied in the interests of the administration of justice that time should be extended.
Extent and explanation for the delay
The application for judicial review was filed on 16 November 2022. Accordingly, as already noted, the application was filed 586 days outside the 35-day time limit.
This is clearly a very significant delay.
The Court agrees with the first respondent’s submission that, generally, the longer the delay the more persuasive the explanation needs to be (first respondent’s written submissions (“FRS”) [36] citing Tran v Minister for Immigration & Border Protection [2014] FCA 1243 at [38]).
In the application, the applicant provides the following as the grounds of the application for extension of time (without alteration):
1. I was not aware of the limit for the judicial review in the Court and I required extension of time to seek justice where I believe there was a lack of procedural fairness.
2. The applicant met the key elements of the Subclass 866 visa but the Tribunal member did not consider and therefore committed factual and legal error.
Paragraph two is not a ground in support of an application for an extension of time. Accordingly, the only ground offered by the application is that the applicant says that he “was not aware of the time limit for judicial review in the Court”.
As already noted, the Tribunal informed the applicant of the time limit for making an application for judicial review to this Court (CB 80-82).
Although the applicant had not filed any material in support of his application for an extension of time, he was given an opportunity to make oral submissions explaining the delay. At the hearing, the applicant told the Court that he did not know what he should do, and he was looking for people who had the same experience to help him, but everyone was busy, and he had to wait until somebody was available to give him the story of what to do and what to say. The applicant also explained that his language limitations made it difficult for him to know what to say and what to write. He said that he relied on friends to translate emails for him and that perhaps this friend did not tell him “about the days” when he had to file this application.
The Court is not satisfied that this is a plausible, reasonable, adequate or persuasive explanation for such a significant delay. On that basis alone, the Court would not be prepared to grant an extension of time. It would not be in the interests of the administration of justice to do so. However, the Court has gone on to consider whether the other factors and, in particular, prospects of success should however persuade the Court to exercise its discretion to grant the requested extension despite the significant delay.
Prejudice, impact on the public and the applicant
The first respondent conceded that there was no prejudice to it in the granting of the extension of time that could not be addressed through an order for costs but that the mere absence of prejudice to the first respondent is insufficient to warrant the grant of an extension (FRS [35] citing SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]).
As to the impact on the applicant, the Court observes that no right of appeal would lie to the Federal Court of Australia in the event that this Court did not grant the extension sought although an application could be made to that Court for judicial review (BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [4] per Logan J).
On balance, the Court is satisfied that this factor weighs in favour of an extension being granted.
Merits of the proposed substantive application
This then leaves an assessment of the merits of the substantive proposed application.
The Court is of the view that it is permissible and appropriate, in considering whether in the interests of the administration of justice time should be extended, for the Court to consider whether the proposed grounds of review have any merit.
In forming a view as to the merits of the substantive application, the Court is not necessarily limited to anything more than an impressionistic consideration of the grounds of review (Katoa at [19] per Kiefel CJ, Gageler, Keane and Gleeson JJ; at [54] per Gordon, Edelman and Steward JJ). The task of the Court in assessing merits is to evaluate whether a ground of review is ‘arguable’, ‘reasonably arguable’ ‘sufficiently arguable’ or has ‘reasonable prospects of success’ (Katao at [15] per Kiefel CJ, Gageler, Keane and Gleeson JJ citing MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at 598 [63] per Mortimer J (as her Honour then was)).
Despite the procedural order permitting him to do so, the applicant did not file an amended application. The grounds of review in the application are (without alteration):
1. I came to Australia as a visitor visa holder and made an application for further visa a and application for protection visa. Protection visa application was refused then I lodged an application for review of my visa application and The Tribunal has refused to accept my application and I like to make an appeal application to the Federal Circuit Court to seek justice on my matter.
2. I lodged my application for review with The Tribunal but they have refused to accept my application for review stating that they have no jurisdiction on this matter because application for review had not been lodged within the required time limit.
3. I do not lodge my application for review with The Tribunal within the relevant time limit. The reason it happened was because I had a problem opening my email. I lost my mobile phone and after that when I replaced a new one I had a problem opening my email as I forgot my password for the email but once I figured it out, it's been late for me to lodge my application. I only realised my visa was refused when I had problem logged in to the 'VEVO' app.
4. This is clear unfair treatment by The Tribunal to myself. The Tribunal has refusal letter from the Department and can clearly see the sensitivity of this matter and returning to my home country could have serious consequences for me.
5. I would like to request to Federal Circuit Court to accept my application and have a fresh look on this matter and set a new orders and replace orders made by The Tribunal. I would like to request to Federal Circuit Court to set aside old orders made by The Tribunal and decide on this matter by having another look at this matter and I am sure that Federal Circuit Court would accept my claim and will set new orders and replace old orders.
The Court agrees with the first respondent’s submission that these five paragraphs do not identify five separate grounds of review (FRS [28]). A fair reading of those paragraphs is that the applicant contends that the Tribunal denied him procedural fairness because it did not accept his explanation for the delay in filing the application to the Tribunal.
The first respondent submits that the grounds of review in the proposed substantive application have no prospects of success and for that reason it is not in the interests of the administration of justice to grant an extension of time (FRS [41]; citing Pohahau v Minister for Home Affairs [2019] FCA 1243 at [35]).
The applicant was unable to assist the Court with any oral submission in support of the grounds of review in his application.
The Court considers that the proposed application has no prospects of success for the following reasons:
(a)The delegate notified the applicant of their decision in the prescribed way by email sent to the email address the applicant had given as the email address at which he stated he could be contacted by the Department being the nominated Yahoo email address: (s 66(1); reg 2.16(3); 494B(5)(b); 494B(5)(d));
(b)The notification of the decision contained each of the matters required by s 66(2)(a)-(c);
(c)The notification of the decision contained the specific information about the applicant’s review rights as required by s 66(2)(d) and was sufficiently clear (Singh v Minister for Immigration & Border Protection [2020] FCAFC 31);
(d)The applicant is taken to have received notification of the decision at the end of the day on which the email was transmitted, that is, on 5 October 2020: s 494C(5);
(e)That is so irrespective of whether the applicant in fact had access to the nominated email address at that time and irrespective of any difficulties with computer access: ss 494B(5), 494C(5); Lo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 376 at [49];
(f)Accordingly, the applicant having been properly notified of the decision, was required to file the application for review within 28 days after the notification of the decision including the date of the notification which was by 1 November 2020: s 412(1)(b); reg 4.31(2);
(g)The application was not filed within the prescribed time as it was filed on 2 December 2020;
(h)The Tribunal does not have discretion to extend this time period: ss 412(1)(b); reg 4.31; CQP15 v Minister for Immigration and Border Protection [2017] FCA 854 at [43].
It follows that the Tribunal correctly held that it did not have jurisdiction to review the delegate’s decision.
To the extent that the applicant submits that he was not afforded procedural fairness, the Tribunal invited the applicant to comment as to why he considered his application to be valid. The Tribunal took the applicant’s response into consideration but as already stated, the Tribunal had no discretion to extend time in circumstances where the applicant was properly notified of the decision. The applicant has not identified any other basis upon which the Tribunal may have fallen into jurisdictional error and the Court is unable to discern any such error.
The proposed application for judicial review has no prospects of success.
Accordingly, the Court finds that an extension of time within which to file the application for judicial review is not in the interests of the administration of justice. The application is dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 6 December 2024
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