DSB20 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 474

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DSB20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 474  

File number(s):

MLG 2913 of 2020

Judgment of:

JUDGE GOODCHILD

Date of judgment:

16 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 

Legislation:

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

Migration Regulations 1994 (Cth)

Cases cited:

ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744

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 163

CZA19 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 611

Minister 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 and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439

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 533

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:

78

Date of hearing:

18 May 2023

Place:

Sydney

Applicant:

In Person

Solicitor for the Respondents:

Ms T. Weir of HWL Ebsworth Lawyers

ORDERS

MLG 2913 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DSB20
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

order made by:	JUDGE GOODCHILD
DATE OF ORDER:	16 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.

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:

INTRODUCTION & BACKGROUND

1. The applicant in these proceedings (“the applicant”), a citizen of Malaysia, arrived in Australia on 5 January 2016, as the holder of an Electronic Travel Authority (Subclass 601) visa (Court Book (“CB”) 65). He lodged an application for a Protection (Subclass 866) visa (“the Protection visa”) on 30 November 2016 (CB 1).

2. On 7 February 2016, a delegate of the then Minister for Immigration made a decision refusing to grant the applicant the Protection visa (“the delegate’s decision”) (CB 41 to 55).

3. On 18 February 2017 the applicant lodged an application with the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision (CB 56 to 58). In his review application, the applicant nominated an email address for service of documents, and also provided a telephone number.

4. On 10 August 2017, the Tribunal sent an email to the applicant’s nominated email address attaching correspondence inviting the applicant to attend a hearing on 6 September 2017 at 9.30am (VIC time) (CB 67). In that correspondence, the Tribunal advised the applicant that at the hearing he would be provided with the opportunity to give evidence and present arguments relating to the issues in his case.

5. On 30 August and 5 September 2017, the Tribunal sent an SMS message to the applicant’s nominated telephone number reminding him of the time and date of the Tribunal hearing. No response to the hearing invitation was received from the applicant (CB 89).

6. At the Tribunal hearing on 6 September 2017, there was no appearance by or on behalf of the applicant (CB 76 to 78).

7. In circumstances of the applicant’s failure to attend the Tribunal hearing on 6 September 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 this nominated email address. By correspondence attached to the email, the applicant was also informed he could make an application to reinstate his review application (CB 80 to 82).

8. The applicant did not apply for reinstatement. As such, on 21 September 2017 the Tribunal made a decision to confirm the Non-Appearance Decision (“the Confirmation Decision”) (CB 87) which, by virtue of s 426A(1F) of the Act, meant the delegate’s decision was taken to be affirmed.

9. By an Originating Application filed in this Court on 10 August 2020, the applicant seeks an extension of time to apply for judicial review of the Confirmation Decision. The applicant does not refer in his application to the Non-Appearance Decision and this decision was not attached to the applicant’s Affidavit in support of the application. However, I treat the present review application with respect to both the Non-Appearance Decision of 6 September 2017 and the Confirmation Decision dated 21 September 2017.

10. 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 1,034 days out-of-time in relation to the Non-Appearance Decision (dated 6 September 2017), and 1,019 days out-of-time with respect to the Confirmation Decision (dated 21 September 2017).

11. Accordingly, the applicant requires an extension of time pursuant to s 477(2) of the Act to pursue his judicial review proceedings in this Court.

12. On 18 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 interpret the proceedings for the applicant.

13. This Judgment addresses whether an extension of time should be granted.

14. For the reasons that follow, the Court concludes that an extension of time should not be granted.

    LEGAL PRINCIPLES - EXTENSION OF TIME

15. 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.

16. In the present case, the applicant filed his Originating Application on 10 August 2020 seeking an extension of time and provided therein the following “grounds” for why he believes an extension should be granted:

    1.I DID NOT HAVE A LAWYER AND ADVICE THAT I COULD GO TO COURT FOR APPEAL

    2.I WAS HAVING FINANCIAL HARDSHIP AND UNAWARE THAT I COULD SEEK FOR EXEMPTION FILLING FEE AT COURT.

    (As per original)

17. Section 477(2)(a) of the Act is thus satisfied.

18. 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.

19. 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 Tu’uta Katoa[1] in relation to a substantively similar provision in s 477A(2) of the Act, 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] Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 (“Katoa”) at [12]-[13].

20. 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].

21. In Katoa, in relation to s 477A(2) of the Act, the High Court considered 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] Tu’uta Katoa at [39], [46]-[61].

22. To assist the applicant who, as noted, was unrepresented at the hearing on 18 May 2023, the Court explained to him 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 identifies the wrong issue or asks the wrong question;[5]

    (b)where the decision-maker ignores relevant material;[6]

    (c)where the decision-maker relies on irrelevant material;[7]

    (d)where the decision-maker fails to follow mandatory procedures;[8]

    (e)where the decision-maker shows actual or apprehended bias;[9] and

    (f)where the decision is illogical, irrational or unreasonable.[10]

    [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] Craig v State of South Australia (1995) 184 CLR 163 at 198.

    [8] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208].

    [9] SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2].

    [10] 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].

23. 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 he 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 decisions it arrived at.[11]

    [11] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

    CONSIDERATION

24. The materials before the Court include: 

    ·the applicant’s Originating Application filed 10 August 2020;

    ·the applicant’s Affidavit filed in support of his Originating Application dated 10 August 2020;

    ·the first respondent’s Response filed 12 November 2020;

    ·the first respondent’s Affidavit filed 6 February 2023;

    ·the Court Book filed by the first respondent on 12 April 2023;

    ·the first respondent’s written Outline of Submissions filed 21 April 2023;

    ·the first respondent’s List of Authorities filed 21 April 2023; and

    ·the first respondent’s Affidavit of Service filed 12 May 2023.

25. The Court confirmed with the applicant that he had the Court Book and the written Outline of Submissions of the first respondent which had been served on him on 12 April 2023 and 5 May 2023, respectively. The matter was stood down for a period of time to allow the Malay interpreter to interpret for the applicant the written submissions of the first respondent. When the matter resumed, the applicant was asked if there was anything further he wished to say in respect of his 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

26. The Court notes that an extension of time is not granted as a right.[12] 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.[13]

    [12] Gallo v Dawson (1990) 93 ALR 479 at [2] per McHugh J.

    [13] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.

27. The delays in this matter are 1,034 days in relation to the Non-Appearance Decision and 1,019 days in relation to the Confirmation Decision.

28. The delay here is significant and weighs against the granting of an extension of time.

    Prejudice

29. It was conceded by the first respondent’s solicitor in written submissions filed in this Court on 21 April 2023 that the first respondent does not face any substantive prejudice if the extension was granted. 

30. This weighs in favour of granting the extension of time.

    Explanation for delay

31. The longer the delay in question, the more satisfactory the explanation for that delay needs to be.[14]

    [14] 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.

32. In his Affidavit filed in support of his judicial review application, the applicant did not provide any explanation for the delay in commencing the proceedings in this Court. Annexed to that Affidavit was a copy of the Confirmation Decision made by the Tribunal. It is in the applicant’s application, and oral submissions, where he provides some detail as an explanation for delay.

33. Ground 1 of the applicant’s application for an extension of time states that he did not have a lawyer or advice that he could go to court for these proceedings. To the extent that the applicant is relying upon a lack of legal advice as a ground for granting an extension, it has been held that whilst the Court will generally provide some latitude to self-represented litigants in the conduct of matters to which they are a party, lack of legal advice alone is an insufficient excuse for failure to comply with statutory time-frames.[15] 

    [15] 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].

34. At the hearing before me, the applicant submitted that he did not have a strong understanding of the English language. The applicant accepted that he was late by more than 1000 days but submitted that he did not did not have any assistance, and that his friends would only assist him if he paid them. With respect to his non-appearance at the Tribunal hearing on 6 September 2017, the applicant submitted that he was “stuck” in Queensland.

35. 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 him. As was recently discussed by Collier J in Englezos:[16]

    38. 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]…

    39. 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)

    [16] Englezos v Secretary, Department of Social Services [2023] FCA 31 at [38]-[39].

36. The Court does not consider that the applicant has provided a satisfactory explanation for the delay.

37. This weighs against granting an extension of time.

    Merit

38. 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”.

39. In this regard, the Court refers to 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”.[17] 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,[18] 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.[19]

    [17] CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at 452 [19].

    [18] MZABP [2015] FCA 1391; (2015) 242 FCR 585 at 597 [58].

    [19] Federal Court of Australia Act 1976 (Cth), s 24(1)(a).

1. The application for judicial review filed by the applicant on 10 August 2020 includes the following grounds of review:

   1.THE ADMINISTRATIVE APPEALS TRIBUNAL MADE DECISION BY AFFIRMING DISMISSAL FOR MY APPLICATION FOR PROTECTION VISA DATED ON THE 21 SEPTEMBER 2017 AFTER ME NOT ATTENDING THE HEARING TO PRESENT ARGUEMENTS AND EVIDENCES FOR MY CLAIMS.

   2.I WS TOTALLY UNAWARE ABOUT THE HEARING DATE, THAT RESULT TO A DECISION FINALISNG MY APPLICATION WITH A REFUSAL BUT NOT GIVING A CHANCE REINSTATEMENT. I REALISE ONLY AFTER NOTIFICATION ON MY VEVO APPLICATION HAD EXPIRY DATE. I THAN CONTACTED THE TIBUNAL TO PHONE AND SEEK CONSENT BUT WAS NEVER TAKEN TO CONSIDERATION AND SAID THAT THEY HAVE NO MORE JURISDICTION.

   3.THE TRIBUNAL DID NOT INVESTIGATE BUT AFFIRMED THAT I DID NOT MEET THE PROTECTION VISA OBLIGATION AND MEET THE CRITERIAN OF REFUGEE. ACCORDING TO MIGRATION ACT 1958 THE DEPATMENT OF IMMIGRATION HAD NOTIFY ME THAT I HAVE SUBBITTED A VALID APPLICATION AND ALSO WHEN I SUBMITTED TO TRIBUNAL FOR REVIEW THE TRIBUNAL ACKNOLEDGED MY APPLICATION AS VALID.

   4.ACCORDING TO MIGRATION ACT 1958 – SECT 414, TRIBUNAL MUST REVIEW THE CASE IN MATTER ACCORDINGLY WHEN THE APPLICATION IS LODGED VALID UNDER SECTION 412 AND MAKE A DECISION THAT HAS TO HAVE FAIRNESS BUT IN MY MATTER TRIBUNAL DID NOT MUCH DO INVESTIGATION IN-ORDER TO GIVE A CONCLUDED DECISION. I THINK THAT TRIBUNAL DID NOT FOLLOW THE ACT.

   5.I WAS NOT GIVEN A CHANCE TO MAKE AN ASSESSMENT N RELATION TO s5H(2) TO DEFINE s5H(1) OF THE ACT AND TO PROVIDE EVIDENCES FOR MY CLAIM AND PRESENT MY ARGUMENTS TO VALID MY APPLICATION FOR PROTECTION WITH A HEARING.

   6.THEREFORE, THE DECISION MADE IS NOT FAIR AND I SEEK THE COURT FOR AN ORDER (CONSENT ORDER) BEEN GIVEN FOR MY CASE.

   (As per original)

2. The applicant’s application contains no particularisation of the grounds of the judicial review. Orders were made for the applicant to file and serve any amended application and any affidavit containing additional evidence to be relied upon. No amended application or further affidavit material was filed. An order was also made for the applicant to file and serve written submissions, however none were filed.

3. On a review of the applicant’s application and affidavit evidence, there is nothing contained in either document which gives rise to matters of jurisdictional error.

4. Despite this, it is important to ensure that the applicant’s judicial review application is substantially considered by this Court. At the hearing on 18 May 2023, I  gave the applicant an opportunity to elaborate on the substantive “grounds of review” identified in his judicial review application, and to outline any other concerns that he might have in relation to the Tribunal’s decisions.

5. Nothing that the applicant said to me was relevant in advancing the prospects of success of this case.

6. While the applicant’s oral submissions did not otherwise raise any allegation of jurisdictional error or any issue of the sort that this Court can address, in its duty to assist self-represented litigants, the Court will consider for itself whether any arguable case of error arises in the Tribunal’s decision.

7. Having regard to the grounds of review contained in the applicant’s application and having regard to the nature of the decisions under review, I propose to consider the following issues:

   (a)whether the applicant was properly invited to attend the Tribunal hearing;

   (b)whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance; and

   (c)whether the Tribunal erred by confirming the decision to dismiss the application.

8. For completeness, I first set out the Tribunal’s decisions.

   The Tribunal’s decisions

   The Non-Appearance Decision

9. The Non-Appearance Decision dated 6 September 2017 provides (CB 82):

   1. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 6 September 2017. 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 with 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 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.

   (As per original)

   The Confirmation Decision

10. The Confirmation Decision dated 21 September 2017 provides (CB 88):

    APPLICATION FOR REVIEW

    1.   This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 February 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

    2. On 6 September 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.

    (As per original)

    Whether the applicant was properly invited to attend the Tribunal hearing

11. As noted above, the applicant did not attend the Tribunal hearing scheduled on 6 September 2017 which resulted in the Tribunal dismissing the applicant’s application for review pursuant to s 426A(1A)(b) of the Act.

12. The Tribunal was required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act. 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.

13. In the present case, the invitation to attend the hearing:

    (a)was addressed to the applicant (CB 67);

    (b)clearly indicated the date, time and means by which the applicant could participate in the Tribunal hearing (CB 67);

    (c)was sent to the applicant’s email address provided by him in his review application (CB 67), noting that that the email notification is a method approved by s 441A(5)(b) of the Act;

    (d)was provided to the applicant more than 14 days’ prior to the scheduled hearing, being a time-frame exceeding the minimum notice period prescribed by reg 4.35 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 (CB 67).

14. 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 10 August 2017), regardless of whether the document was actually received.[20]

    [20] SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271 at [36].

15. The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act. The applicant in this matter was properly invited to attend the hearing.

16. No jurisdictional error arises in relation to the Tribunal’s procedural fairness obligations concerning the invitation of the applicant to the hearing.

    Whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance

17. As outlined by this Court in BHG22[21] (citing ACN22[22]), before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (under s 425 of the Act) to appear before it.

    [21] BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176 (“BHG22”).

    [22] ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744.

18. Further, ss 425 and 425A of the Act are to be read together.[23] That is, if s 425A of the Act has not been complied with, a valid notice of invitation has not been sent and the Tribunal’s powers under s 426A of the Act will not be enlivened.

    [23] Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39] (“SZFHC”).

19. As set out above, the Court is satisfied that the applicant in this matter was properly invited to appear at the Tribunal hearing as required by ss 425 and 425A of the Act.

20. Because the applicant had been validly invited to attend a hearing, but failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section provides:

    426A  Failure of applicant to appear before Tribunal

    Scope

    (1)       This section applies if the applicant:

    (a) is invited under section 425 to appear before the Tribunal; but

    (b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

    Tribunal may make a decision on the review or dismiss proceedings

    (1A)     The Tribunal may:

    (a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

    (b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

    Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.

    Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

21. The applicant did not appear at the hearing on 6 September 2017. He does not dispute this.

22. In the circumstances, two options were available to the Tribunal. It could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or it could dismiss the applicant’s review application without any further consideration (pursuant to s 426(1A)(b) of the Act).

23. The Tribunal in this matter chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).

24. The Tribunal’s decision to exercise its powers in this regard is discretionary. As such, that decision must be made “reasonably”.

25. In the circumstances of this matter, the Court is satisfied that the Tribunal acted reasonably. Relevantly:

    (a)the hearing invitation was sent to the applicant via email to his 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);

    (b)no further material had been provided to the Tribunal by the applicant in support of his review application;

    (c)two SMS hearing reminders were sent to the applicant’s nominated mobile number on 30 August 2017 and 5 September 2017; and

    (d)the applicant did not appear at the Tribunal hearing at the scheduled time of 9.30 am (VIC time) on 6 September 2017 (CB 77).

26. The Court further notes that, as was explained in BHG22 (citing Sun[24] and Mohammed[25]), 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.[26] 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.[27]

    [24] Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901.

    [25] Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268.

    [26] SZFHC at [39].

    [27] SZFHC at [41].

27. The Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicant’s application pursuant to s 426A(1A)(b) of the Act.

28. No jurisdictional error arises in this regard.

    Whether the Tribunal erred by confirming the decision to dismiss the application

29. So far as the Confirmation Decision is concerned, the Court notes that the applicant was notified (by email) of the Non-Appearance Decision on 6 September 2017 (CB 80 to 82).

30. The Court notes that, when the applicant was advised that his application had been dismissed, he was also advised that he could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (that is, by 20 September 2017). Relevantly, the letter to the applicant provided as follows (CB 80):

    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 20 September 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.

31. 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.

32. 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.

33. The Tribunal did so and provided the applicant with a written statement to that effect, in the form of the Confirmation Decision, on 21 September 2017 (CB 86 to 88).

34. No jurisdictional error arises in relation to the Tribunal’s Confirmation Decision.

    Conclusion regarding merits of the substantive application

35. The applicant conceded that he received notification to attend the Tribunal hearing, but due to circumstances at the time, did not take any action with respect to that notification. The Tribunal exercised its discretion to dismiss the application reasonably.[28] The Tribunal provided an evident and intelligible justification for the Non-Appearance Decision, noting that the applicant had been properly invited to the hearing.

    [28] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [97]; EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [22].

36. On 6 September 2017, the Tribunal complied with its obligation to notify the applicant of the Non-Appearance Decision as required by s 426B(5) of the Act. The Tribunal sent the applicant an email attaching a letter which informed the applicant that his application to the Tribunal had been dismissed due to his non-appearance. This notice also contained information as to how the applicant could have his 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).

37. For the reasons outlined above, I find that the substantive application is without merit, and has no prospects of success.

    CONCLUSION

38. The lengthy delay in filing the application, the lack of both a satisfactory explanation for that delay and an arguable case of jurisdictional error by 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.

39. The application or an extension of time is, accordingly, refused.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild.

Associate:
Dated: 16 June 2023