DRX20 v Minister for Immigration
[2020] FCCA 3167
•20 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRX20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3167 |
| Catchwords: MIGRATION – Application for an extension of time – factors for consideration – significant delay – no reasonably arguable case – extension of time refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), ss.425A, 426A, 426B, 476, 477 |
| Cases cited: Craig v State of South Australia (1995) 184 CLR 163 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| Applicant: | DRX20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 241 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 19 November 2020 |
| Date of Last Submission: | 19 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 20 November 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application for an order under s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 241 of 2020
| DRX20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Malaysia. He arrived in Australia on a visitor visa on 9 December 2016 (Court Book (“CB”) 21).
On 10 January 2017, the applicant applied for a Protection (subclass 866) visa (the “visa”). The applicant claimed to fear harm on the basis that he had obtained a loan from a money lender and had been unable to meet the payment instalments (CB 1-39). This, the applicant claims, caused the money lender to threaten him and his family, pour red paint on the applicant’s door (as a warning) and beat him. The applicant fears returning to Malaysia as he believes that the money lender will harm him until he repays the debt.
The applicant was invited to attend a hearing before a delegate of the first respondent (the “Minister”) on 14 March 2017 (CB 40).
On 23 March 2017, the delegate refused to grant the applicant the visa (CB 43-59). The delegate determined that the applicant could obtain an adequate level of state protection such that he did not meet the complementary protection criterion.
On 1 April 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 60-61).
On 6 April 2017, the Tribunal phoned the applicant to enquire about the applicant’s email address (which, it appears, was invalid). The applicant provided a new email address (CB 89).
On 30 November 2017, the Tribunal invited the applicant to attend a hearing scheduled for 19 January 2018 (CB 68-70). The applicant confirmed that he would be attending and that he required a Malaysian interpreter (CB 71).
The applicant did not attend the hearing on 19 January 2018 (CB 72-76). The Tribunal attempted to call the applicant on the mobile telephone number provided but the call went to voicemail (CB 89).
The Tribunal dismissed the application for non-appearance (the “Non-Appearance Decision”) pursuant to s.426A(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) (CB 77-81).
On 6 February 2018, the Tribunal confirmed the decision to dismiss the application for non-appearance (the “Confirmation Decision”) (CB 84-85)
On 23 July 2020, the applicant applied to this Court for judicial review of the Tribunal’s decisions. Unfortunately, the application was filed more than 800 days late. As the application was filed outside of the statutory time period specified in s.477 of the Act (that being 35 days), the applicant must obtain an order extending time in order to pursue his substantive application.
Proceedings in this Court
The applicant appeared before the Court without legal assistance. He was assisted by an interpreter. The Court confirmed with the applicant that he had a copy of the Court Book and the Minister’s written submissions dated 15 October 2020.
The applicant did not file any written submissions. The materials before the Court thus include the application for judicial review dated
23 July 2020, a Court Book numbering 89 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 15 October 2020.
As noted above, the applicant requires an order extending time in order to be able to pursue his substantive application. In his application for judicial review, the applicant indicated that he needed an extension of time and provided the following grounds in support of that request:
1. I am late in filing my case to the court because I did not know about the process after my review to the Administrative Appeals Tribunal.
2. I was only able to file my case when a friend advised me how to file my case to the Federal Circuit Court.
The applicant has satisfied the requirements of s.477(2)(a) of the Act. The applicant also filed an affidavit affirmed 21 July 2020 in support of the application wherein he repeats the grounds set out above. The Court accepts that the applicant has also complied with r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth).
What remains is for the applicant to satisfy s.477(2)(b) of the Act which provides:
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
…
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Noting that the applicant was unrepresented, the Court explained to the applicant (who was assisted by an interpreter in the Malay language) that, when considering whether to grant an extension of time, the Court generally looks at, but is not restricted to assessing, the following factors:
a)length of delay and prejudice;
b)whether the explanation for the delay is adequate; and
c)whether the proposed substantive application for judicial review has merit.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
The applicant was asked to address these three factors. His oral submissions and the Minister’s submissions in response are discussed below.
Consideration
Delay and Prejudice
Section 477(1) of the Act specifies that an application must be brought to this Court with 35 days. Accordingly, the last day on which the applicant could have lodged his application in this Court was
13 March 2018.
The applicant lodged his application on 23 July 2020. The application is 862 days late – more than two years outside of the statutory time limit.
The delay is significant. This weighs against granting an extension of time.
In relation to prejudice, the Court does not disregard the importance of the finality of litigation. However, as the Minister rightly conceded, there was little prejudice to him if the extension is granted. This weighs in favour of granting the extension of time.
Explanation
In seeking an extension, the applicant, in effect, pleads “ignorance”. He states that he was not aware of his right to seek review until a friend told him.
The Court notes that attached to the Confirmation Decision was an information sheet which stated (CB 86-87):
If you think that our decision is wrong in law, you may consider seeking judicial review in the Federal Circuit Court of Australia.
…
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. 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.
The email which attached the Confirmation Decision and the information sheet detailed above provided as follows (CB 83):
If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
Information about judicial review was clearly readily available and accessible to the applicant.
In SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 (“SZSDA”) it was stated:
38. In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
Ignorance, by itself, is not a sufficient explanation. Here, the applicant has also not provided “more”. There was clearly information available and no reason to suggest that the applicant could not obtain it.
Before this Court, the applicant also referred to his “agent”. There is nothing before the Court to suggest that the applicant was ever represented by a certified migration agent. The applicant seemed to suggest that the “agent” was not certified and he had only approached this person because he “needed his help”. If it is the case that the applicant had an agent of any sort, this does not excuse the fact that it was the applicant’s responsibility to be aware of his appeal rights. He was, as the Minister submits, capable of communicating with the Tribunal and was, as such, capable of seeking further assistance on his appeal rights if he wished to do so.
On the basis of the above, the Court finds the applicant has not provided a satisfactory explanation as to why his application for judicial review was filed more than two years after the statutory time limit. This weighs against granting an extension of time.
Merits
In SZDSA, it was stated that the “more important factor” that needs to be addressed in determining whether to grant an extension will be whether the proposed application has any merit (at [39]).
It will rarely be appropriate or in the interests of the administration of justice to grant an extension of time where there is no reasonable prospects of the substantive application succeeding. However, whether there is a reasonable prospect of success is to be determined at a reasonably impressionistic level: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391. The applicant need only present a reasonably arguable case of error.
By way of background it is noted that the Tribunal decisions on review provide as follows.
In full, the Non-Appearance Decision provides:
1. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on Friday 19 January 2018 at 9:30 a.m. 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. No request for adjournment was received. 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 with section 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.
In full, the Confirmation Decision provides:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2. On 19 January 2018 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.
The applicant’s application for judicial review contains three grounds of review as follows:
1. The decision made to refuse my Protection Visa application has a jurisdictional error.
2. The decision maker’s reference to a report on the Royal Malaysian Police has incorrect data which he/she uses as a point in making her final decision.
3. The decision maker’s statement about the applicant not facing harm when returned to Malaysia is purely based on his/her personal opinion and not on any facts.
The applicant filed a second affidavit also affirmed on 21 July 2020 wherein he repeats the grounds of the judicial review application.
Noting the remarks of the Federal Court (in particular in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]) that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what they think the Tribunal “did wrong”.
To assist the applicant, the Court explained that, in determining whether the substantive application has merit, it needed to look at whether there was a reasonably arguable case that the Tribunal had engaged in jurisdictional error. It was stressed that the Court is not required to be satisfied that there was, in fact, an error. Rather, it need only be satisfied that there is a reasonable argument that the Tribunal fell into jurisdictional error.
It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap and that for migration decisions, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that the Court cannot undertake a “merits review” of the Tribunal’s decision in assessing whether his substantive application has a reasonable prospect of success: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Against this background, the applicant stated that he was waiting for “his agent” to take him to the hearing. The applicant had, he explained to the Court, relied on his agent to take him to the hearing and communicate everything to him. The applicant also explained that the agent had been detained by police “sometime in 2017” or “perhaps in 2018”.
The Court will address these submissions below.
It is noted that the applicant also sent an email to Chambers following the hearing. Unfortunately, that email only pleads for the right to remain in Australia. It does not assist in relation to the issue of jurisdictional error.
The Proposed Grounds of Review
The three grounds of the applicant’s substantive judicial review application do not identify an arguable case of error on the part of the Tribunal.
Ground 1 is incorrect. The Tribunal did not assess and then refuse the protection visa. It dismissed the application before it without considering the visa category in question. It did so on the basis that the applicant had not appeared.
Grounds 2 and 3 are irrelevant to the Tribunal’s decision. These grounds refer to the delegate’s decision. The Court has no jurisdiction in relation to the delegate’s decision: the Act, s.476(2) and (4). Accordingly, grounds 2 and 3 raise no arguable case of jurisdictional error.
The matters referred to in the applicant’s second affidavit affirmed 21 July 2020, for the same reasons, raise no arguable case of jurisdictional error.
The grounds of the substantive application for judicial review and the applicant’s affidavit affirmed 21 July 2020 do not contain an arguable case of jurisdictional error.
Applicant’s Oral Submissions
Before this Court, the applicant referred to “an agent” that he says had promised to take him to the hearing.
There is nothing in the Court Book that indicates that the applicant was ever represented by a migration agent or indeed anyone else. Before the delegate and the Tribunal the applicant indicated that he was not represented (CB 10 and 60-61).
The applicant also engaged in communications with the Tribunal on two occasions in his own right. The first occasion was via mobile telephone. The second occasion was via email (from the same email address that the applicant has used in receiving correspondence in relation to proceedings in this Court). That email confirmed that he would attend the hearing. It does not reference an agent.
Even if the Court accepts that the applicant had a third party (an “agent”) advising/assisting him, it cannot be said on the facts of this case that that person’s conduct vitiated the Tribunal’s decision-making process as per SZFDE v Minister for Immigration & Citizenship [2007] HCA 35. Here, the Tribunal was not aware that any “agent” existed. Further, the applicant was aware of the hearing and there was nothing preventing him from attending. He did not require an agent or another person to attend with him. While he may not have wanted to attend without an “agent”, that was a matter for him.
No arguable case of jurisdictional error arises from the applicant’s oral submissions.
Merit Generally
In its duty to assist self-represented litigants, the Court has remained astute and alert to the possibility of error in the Tribunal’s decision and assessed the Tribunal’s decision for any arguable case of error: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
The Court has considered whether the Tribunal complied with the procedural fairness obligations and acted reasonably when making the Non-Appearance Decision and the Confirmation Decision.
In relation to the Non-Appearance Decision:
a)the applicant was sent an invitation to attend a hearing. That invitation complied with the requirements in s.425A of the Act. It was sent to the applicant’s last email address provided in connection with the application; and
b)the applicant did not attend the hearing on the date or at the time specified in the invitation. The Tribunal waited 15 minutes and called the applicant on his mobile telephone number prior to declaring that the applicant was a “no show”.
The necessary preconditions to the exercise of the discretionary power in s.426A(1A)(b) of the Act were met.
The exercise of the discretion in s.426A(1A)(b) must be reasonable: Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 (“SZVFW”). Here:
a)the Tribunal complied with its procedural fairness obligations and sent a valid invitation to the applicant to attend the hearing;
b)the Tribunal sent the applicant two SMS reminders. One was sent five days prior to the Tribunal hearing. Another was sent the day prior to the Tribunal hearing and reminded the applicant of the date and time of the hearing. The SMS contained a contact number in the event that the applicant had any questions;
c)the applicant did not attend the Tribunal hearing on the date and at the time specified. The Tribunal waited a further 15 minutes for the applicant to arrive. He did not arrive or contact the Tribunal;
d)at 9:45am, the Tribunal attempted to contact the applicant on the mobile number he had provided. The applicant did not answer and the call rang through to a message bank. At 9:47am, the Tribunal dismissed the application for non-appearance; and
e)there had been no correspondence from the applicant to indicate that he wanted an adjournment.
Even though the applicant had indicated that he would attend the Tribunal hearing (CB 71), it cannot be said here that there is a reasonable argument that the Tribunal acted unreasonably by proceeding as it did. The applicant was validly invited to the hearing, was reminded of the hearing on two occasions and the Tribunal made attempts to contact him to determine whether he intended to attend.
Bearing in mind the statutory objective of the Tribunal to act “efficiently” and noting that s.426A aims to assist the Tribunal in that regard (SZVFW at [13]), there is no arguable basis for the Court to find that the Tribunal acted unreasonably.
No arguable error arises from the Non-Appearance Decision.
In relation to the Confirmation Decision, procedural fairness requires that the applicant be notified of the Non-Appearance Decision in accordance with s.426B. The Non-Appearance Decision (the written statement required by s.426B(2)) was sent to the applicant by email within 14 days of it being made: the Act, s.426B(5). The cover letter to the Tribunal’s decision stated that the applicant could apply in writing for reinstatement by 5 February 2018: the Act, s.426B(6).
In circumstances where the Tribunal has complied with s.426B of the Act and the applicant did not apply for reinstatement, the only decision open to the Tribunal to make was the Confirmation Decision: the Act, s.426A(1E).
There is no arguable case of jurisdictional error in relation to the Confirmation Decision.
Conclusion – Merits
The proposed grounds of the substantive application and the applicant’s oral submissions are misguided. They do not give rise to an arguable case of jurisdictional error. The Court is also satisfied that no arguable case arises elsewhere from the Tribunal’s decision.
The lack of an arguable case of jurisdictional error in the Tribunal’s decisions weighs heavily against an extension of time being granted.
Conclusion
Given the lengthy delay in filing the application for judicial review, the unsatisfactory explanation provided for that delay and the lack of any prospects of success in relation to the applicant’s substantive application, it is not in the interests of the administration of justice to grant an extension of time allowing the applicant to file his application for judicial review.
The application for an extension of time is, accordingly, dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 20 November 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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