DTR18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 447
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DTR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 447
File number: MLG 2116 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 29 May 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time application – lengthy delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 414, 415, 425, 425A, 426A, 426B and 477
Migration Legislation Amendment Act (No 1) 1998 (Cth)
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Gallo v Dawson [1990] HCA 30
Haque v Minister for Immigration and Citizenship [2010] FCA 346
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
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 SZKRT [2013] FCA 317
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 & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126
Minister for Immigration and Border Protection v Kim [2014] FCA 390
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sainju v Minister for Immigration and Citizenship [2010] FCA 461
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 110 Date of hearing: 16 May 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms T Martin Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2116 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DTR18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
29 MAY 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) (as amended on 16 May 2023) be 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 KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 14 & 38-43). He first arrived in Australia in November 2015 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (the “ETA”) (CB 21, 41 & 48).
On 24 February 2016, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-37). The applicant provided a copy of his Malaysian passport, the ETA approval and his Malaysian identity card with his application (CB 38-43). In that visa application, the applicant claimed that he had joined an Islamic group in Malaysia which he thought would provide him with religious education (which he “was very interested in”). He claimed that he left the group, however, because it was focused on violence, war and terrorism and was “similar to ‘IS’”. On that basis, the applicant claimed to fear harm from the group which, he claimed, was “trying to make him re-join” and “provoke [him] to become a terrorist” (CB 32-34).
On 25 July 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 48-61). The delegate determined that the applicant would be able to seek protection from the relevant authorities in Malaysia if he were to return and, as such, there was no real risk of significant harm to the applicant if he returned to Malaysia (CB 58-59).
On 8 August 2016, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 62-63). In that application, the applicant provided the Tribunal with a postal address, an email address and a mobile phone number (under the “[c]orrespondence details” section of the application form) (CB 63).
On 5 April 2017, the Tribunal invited the applicant (via email) to attend a hearing before it on 4 May 2017 at 9.30am (VIC time) (CB 67-69). Relevantly, that invitation letter stated (CB 69):
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
On 27 April 2017 and 3 May 2017, the Tribunal attempted to send SMS hearing reminder messages to the applicant. The Tribunal’s case notes reveal that the following messages were sent to the applicant’s mobile phone number (as included in his review application) (CB 77):
Reminder - Your AAT hearing is on 04/05/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
The delivery of those SMS hearing reminder messages failed (CB 77).
The applicant did not attend the hearing scheduled for 4 May 2017 (CB 70-72).
On 4 May 2017, the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) (the “Non-Appearance Decision”) (CB 76). The applicant was notified of that decision (and advised of his right to apply for reinstatement) by letter sent that same day via email (being 4 May 2017) (CB 73-75). That letter relevantly stated (CB 74):
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 18 May 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
Attached to the Tribunal’s correspondence was an information sheet which also included detailed information about how the applicant could seek reinstatement of his application (affidavit of Jonathan Sathiendrakumar affirmed and filed on 16 May 2023 (the “Sathiendrakumar affidavit”) pp 4-5).
The applicant did not seek reinstatement.
On 19 May 2017, the Tribunal confirmed the Non-Appearance Decision made on 4 May 2023 (the “Confirmation Decision”) (CB 81-82). By virtue of s 426A(1F) of the Act, the delegate’s decision was taken to be affirmed. The applicant was notified of that decision by letter sent that same day (via email, on 19 May 2017) (CB 78-80).
On 20 July 2018, the applicant applied to this Court for judicial review of the Tribunal’s
Non-Appearance Decision. Unfortunately, the substantive application was filed outside of the 35-day time limit specified in s 477 of the Act. Accordingly, the applicant requires an extension of time to pursue the substantive proceeding in this Court.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court has determined that an extension of time should not be granted.
CONSIDERATION
The Court notes that on 11 December 2019, procedural orders were made by Registrar Carlton of the then Federal Circuit Court of Australia giving the applicant an opportunity to file an amended application, any affidavits or supplementary court book and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review (including an application for an extension of time) and supporting affidavit, both filed by the applicant on 20 July 2018, a court book numbering 82 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 27 February 2023, an affidavit of service of Tareena Martin affirmed on 7 March 2023 (and filed in this Court on 8 March 2023) and the Sathiendrakumar affidavit.
The applicant appeared before this Court without legal representation. He was, however, assisted by an interpreter in the Bahasa Malay language. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
At the start of the hearing, the Court had a discussion with Ms Martin (who appeared at the hearing on behalf of the Minister) in relation to an unfiled copy of the Sathiendrakumar affidavit which she had emailed to the Court and the applicant moments prior to the commencement of the hearing. Ms Martin explained that the Sathiendrakumar affidavit annexed an information sheet which was provided to the applicant with notification of the Non-Appearance Decision. Ms Martin highlighted that the information contained in the information sheet appeared elsewhere in the Court Book. On that basis, the Court was satisfied that the affidavit should be accepted and was satisfied that there was no prejudice to the applicant in this regard. The Court asked Ms Martin to file the affidavit and she did so shortly after the hearing had finished.
The Court noted that the applicant had not sought review of the Tribunal’s Confirmation Decision. Rather, he had only asked for a review of the Non-Appearance Decision. The Court explained to the applicant why this was an issue and, with his consent (and with that of Ms Martin), the Court made an order amending the application for judicial review to include the seeking of a review of the Confirmation Decision. This is the now standard practice in this Court.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decisions. It was further noted that, in this matter, the Tribunal’s Non-Appearance and Confirmation Decisions are dated 4 May 2017 and 19 May 2017 respectively. The dates by which the applicant was required to file his application in this Court were 8 June 2017 (in relation to the Non-Appearance Decision) and 23 June 2017 (in relation to the Confirmation Decision). Unfortunately, the applicant did not file his substantive application in this Court until 20 July 2018. Hence, the delays here are 407 days in relation to the Non-Appearance Decision and 392 days in relation to the Confirmation Decision.
The Court explained to the applicant that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided a number of “grounds” explaining why he believes that an extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
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.
Noting, again, that the applicant appeared without any legal assistance, the Court explained that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that, when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level” only: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error.
The Court invited the applicant to address each of the factors outlined above and to highlight anything that he considered relevant to his request for an extension of time. The applicant’s responses are discussed in the consideration that follows.
Length of delay
The Court highlights that an extension of time is not granted to an applicant as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods set out in the Act are to be taken as the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As outlined above (at [20]), the delays in this matter are 407 and 392 days in relation to the Non-Appearance and Confirmation Decisions, respectively.
In either case, this is an extraordinary delay (of well over a year) and weighs heavily against the granting of an extension of time.
Prejudice
In written submissions (filed in this Court on 27 February 2023), the Minister conceded that there is no prejudice to the Minister beyond the public interest in the finality of administrative decision making.
This weighs in favour of granting an extension of time.
Explanation
The longer the delay in question, the more satisfactory the explanation for that delay needs to be: 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 (“Manna”) at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
In the application filed by the applicant, the applicant provides 13 “grounds” for the extension of time which relevantly provide (without alteration):
1.I am self-represented and am not well conversant in English. I currently work as a farm hand at Robinvale. I applied for the protection visa on 24 February 2016. I was not invited by the Department of Immigration and Border Protection to attend an interview.
2.I believe the delegate refused my protection visa. I believe I received an email from the delegate regarding the application but I was not sure about the contents. I showed the email to my friend who read it and told me the Department of Immigration was considering my application. The delay was caused because of incorrect advised by my friends. I also paid about $400 to a friend to translate the emails and arrange for me to seek proper advise but to no avail.
3.I did not receive any letters from the Department of Immigration and Administrative Appeals Tribunal.
4.I admit receiving some emails but was incorrectly advised by friends to ignore the emails because it is not relevant.
5.I carried on working at Robinvale thinking my application is pending consideration until recently when the employer asked if I have work rights. I then asked the potential employer to check on VEVO my visa status. It was only then I realised that I had no visa.
6.I understand there is a delay in making this application for review but I genuinely do not have any knowledge of the appeal processes and was self-represented throughout.
7.I didn’t know of my rights to appeal.
8.My bridging visa has expired.
9.I didn’t receive any guidance from anyone or obtained any about information to attend at a community centres for assistance.
10.I have a good case and need another opportunity to present my case.
11.There is no prejudice to the Respondents if my application is allowed.
12.All I am asking is an opportunity to present my case. I believe there are merits in the appeal before the Court.
13.If an extension of time is not granted I have to leave Australia immediately and cannot exercise my legal right to appeal. There is no prejudice to the Respondents whatsoever but I will be severely prejudice in that I cannot appeal and will have to depart Australia. I will be severely prejudice because I have a right to appeal. I will be prejudice because I have a right to be heard and I have not exhausted all my rights to appeal.
In oral submissions before this Court, the applicant explained that he had paid money to an individual (comprising a deposit and then a balance payment) to handle all matters pertaining to his visa. When the applicant was asked by the Court if he had asked that person to file an application in this Court, the applicant said he did not do so. Rather, he “had asked another person to do that” for him. When questioned about why that person did not do what he had been asked to do, the applicant explained that “a deception had taken place” and that, after the applicant had “paid them $400”, “they did not contact [him] for more than a year”. When asked if he had contacted the Court to check if his application had been filed, the applicant explained that he had not contacted the Court.
Although not entirely clear, the applicant seems to suggest that he did not receive notification of the Tribunal’s decisions, stating that he “did not receive any letters from the … Administrative Appeals Tribunal” (although it is noted that he also said that he does “admit [to] receiving some emails but was incorrectly advised by friends to ignore [those] emails”).
The Court Book materials (CB 73-75 and 78-80) show that the Tribunal advised the applicant of both the Non-Appearance and Confirmation Decisions. The Tribunal did so by transmitting the documents to the applicant’s last known email address. This is a valid method of distribution specified in s 441A of the Act. While the applicant also provided the Tribunal with a postal address in his review application (and dispatching by post is also a valid method of distribution pursuant to s 441A of the Act), the Tribunal is free to determine which method of distribution to use in any given case: Minister for Immigration and Border Protection v Kim [2014] FCA 390; Haque v Minister for Immigration and Citizenship [2010] FCA 346 at [64].
Further, the transmission of the document by email refers to the “sending” of the documents and a person is taken to have received the document at the end of the day on which it was sent: Sainju v Minister for Immigration and Citizenship [2010] FCA 461 (“Sainju”) at [57].
Here, the notifications of the Non-Appearance and Confirmation Decisions were sent to the applicant via email at 5.13pm on 4 May 2017 and 2.12pm on 19 May 2017 respectively. The relevant question then is “when was the email sent” – not “when did it come to the attention of the addressee” (in this case the applicant): Sainju at [77].
The applicant is taken to have received the Non-Appearance and Confirmation Decisions on 4 May 2017 and 19 May 2017 respectively.
To the extent that the applicant claims that he did not have a lawyer to advise him or that he did not receive any guidance from anyone, the Court notes that there is no right to legal representation in migration proceedings: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099. Nor is a lack of legal representation a sufficient explanation alone for an extension of time: Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [27], [32] & [36]; Manna at [17]. Further, the applicant did not require the assistance of a lawyer to commence proceedings in this Court. Indeed, when the applicant ultimately filed his review application, it appears that he did so without legal assistance.
Insofar as the applicant claims that he did not file on time because he “genuinely [did] not have any knowledge of the appeal processes” and was unsure of what was required of him, the Court sympathises. Ignorance, however, is no excuse. In that regard, it is noted that in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, the Federal Court explained as follows:
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.
An applicant seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. It does not appear that the applicant in this matter has done that. There is no evidence here, for example, that the applicant contacted the Court or the Tribunal at any time or that he sought assistance from the Court or the Tribunal about what was required of him. Indeed, when asked if he had contacted the Court in relation to his judicial review application, the applicant said that he had “never contacted the Court”.
The applicant claims to have paid money (in the sum of $400) to a “person” that he had asked to file his judicial review application and says that, after payment was made, that person “did not contact [him] for more than a year”. The applicant did not detail any attempts to try to contact that person again or, it appears, make any effort to contact the Court or file an application on his own for approximately 400 days.
The applicant also seems to reference the fact that he is not “well conversant in English” as a reason for the delay. The Court accepts that this applicant, like many who appear before this Court, was unsure of how to lodge an application because of a lack of basis English language skills and that he may have found it difficult to navigate the Court’s filing process.
Even accepting these concerns, however, the Court does not consider that they adequately explain a delay of more than a year. The frustrations highlighted by the applicant (difficulties finding a reliable person to assist with lodging an application and language barriers) are difficulties which are shared by many self-represented litigants who appear before this Court. Most, however, file their application and documents well within the time periods prescribed or shortly thereafter.
After considering all of the concerns and issues raised by the applicant, the Court does not consider the applicant’s explanations to be satisfactory. This weighs against granting an extension of time.
Merits
The most critical factor for consideration when determining whether to grant an application for an extension of time is whether the proposed application for judicial review has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, 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”. 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, 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.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
To assist the applicant, the Court explained to him that the only issue before the Court was whether there is an arguable case, viewed impressionistically, that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, 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 & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(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: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 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].
It was also explained 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: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the applicant told the Court that, when he had been notified of the hearing, the applicant’s friend told him that he “could skip attending the hearing”. The applicant further stated that he does not believe that the Tribunal accepted his evidence or his “reasons about what ha[d] happened to [him]”. The applicant explained that he was “a victim of circumstance” and that he did not wilfully miss the hearing. When asked to explain what he meant by “a victim of circumstance”, the applicant explained that he had no knowledge of “visas and processes” and had put his trust in his friend. The applicant explained that, while he had trusted that person, he had been deceived. The Court asked the applicant if the person he had received advice from was a migration agent. The applicant responded that they “were not” and were “just a regular person” and “a member of the community”.
This issue will be addressed by the Court below.
The Tribunal’s decisions
In order to determine whether the proposed application for judicial review has “merit”, viewed impressionistically, is useful to first set out the Tribunal’s decisions.
The Non-Appearance Decision
The Non-Appearance Decision dated 4 May 2017 provides (CB 76):
The applicant was invited under s.425 of the Migration Act 1958 (the Act) to appear before the Tribunal at 9:30 am on 4 May 2017, but did not appear at the scheduled time and place. As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision
The Confirmation Decision dated 19 May 2017 provides (CB 81-82):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 July 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 4 May 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.
Proposed application for judicial review
The application for judicial review filed by the applicant on 20 July 2018 contains three proposed “grounds of review” (with particulars) as follows (without alteration):
1.The Tribunal failed to accord to the Applicants procedural fairness and natural justice.
Particulars
a.The Tribunals decision to conclude no jurisdiction was arbitrarily and unreasonable.
b.The Tribunal’s refusal to review the delegate’s decision was unreasonable applying the case of MIAC v Xijuan Li and Anor [2013] HCA 18.
c. The Tribunal failed to accord the applicant procedural fairness.
d.The Tribunal failed to review the decision under section 414 of the Act.
2.The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied section 426(1A) (b) Migration Act 1958 (Act)
Particulars
a.The Tribunal failed to informed the Applicant in its non-appearance decision dated 4 May 2017 that the applicant has a right to apply for reinstatement of the review application within 14 days of its decision under section 426A (1B) of the Act.
b.The Tribunal did not act reasonably.
c.The Tribunal did not notify the applicant of a decision on the review pursuant to section 430A of the Act.
d.The Tribunal failed to notify the applicant of a decision to dismiss the application pursuant to section 426B of the Act.
3.The Tribunal failed to comply with section 348 of the Migration Act 1958 (the Act) in that it failed to conduct a review of the Applicant’s application.
Particulars
a.The Applicant refers to and repeats the particulars at paragraph 1 to 2 above.
b.The Tribunal did not conduct a hearing of the matter as contemplated under the Act
Upon review of the applicant’s “grounds of review” and the material before it, the Court considers the applicant to be raising the following issues in need of consideration:
(1)whether the Tribunal erred by failing to conduct a hearing;
(2)whether the Tribunal failed to conduct a review of the application as required by s 414 of the Act;
(3)whether the Tribunal failed to notify the applicant of the Non-Appearance Decision as required by s 426B of the Act;
(4)whether the Tribunal failed to inform the applicant of his right to apply for reinstatement of his application following the Non-Appearance Decision;
(5)whether the Tribunal’s decision to dismiss the applicant’s matter was unreasonable; and
(6)whether the Tribunal failed to afford the applicant procedural fairness in relation to the Confirmation Decision.
These issues will be considered (at a reasonably impressionistic level) by the Court below.
Issue 1: whether the Tribunal erred by failing to conduct a hearing
Pursuant to s 425 of the Act, the Tribunal has a statutory obligation to invite the applicant to attend a hearing before it: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 at [33].
Section 425 of the Act relevantly 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.
The Migration Legislation Amendment Act (No 1) 1998 (Cth) repealed the original version of s 425 of the Act and substituted the current version (as outlined above).
Prior to the amendment, s 425 of the Act provided that the Tribunal “must give the applicant an opportunity to appear before it to give evidence”. As set out above, the current version instead only specifies that the Tribunal “must invite the applicant to appear” before it.
When considering the Tribunal’s obligations pursuant to s 425 of the Act, the Full Court of the Federal Court in NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 (“NALQ”) stated:
30The obligation of the Tribunal under s 425 of the Migration Act is to issue an invitation to the applicant for review to attend a hearing. That invitation must be real and meaningful and not just an empty gesture – Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at [33]; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR at 188 [31]. In Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 at [44] the Full Court expressly rejected a submission that changes made to s 425 had diminished the applicant’s right to appear before the Tribunal to ‘a merely formal right to be invited …’. Importantly also s 425 did not, at the time of the present appellant’s application to the Tribunal, exhaust the requirements of procedural fairness so far as they relate to the right to be heard. Put in that context the effect of the subsequent enactment of s 422B does not fall for consideration in this case.
31The Full Court in SCAR characterised the requirements of s 425 as ‘objective’. Their Honours said (at [37]):
‘The statutory obligation upon the tribunal to provide a “real and meaningful” invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill heath: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140.’
32In his judgment in NAHF Hely J found for the appellants on the basis of a want of procedural fairness rather than a breach of the obligation imposed by s 425. As to the latter, he followed the views expressed by Branson J in Minister for Immigration and Multicultural Affairs v Mohammad (2000) 101 FCR 434 and approved by Wilcox J in Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 and by Beaumont J in Sreeram v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 578. In Mohammad, Branson J said of s 425 and the change in its language (at [43]):
‘This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement.’
In Mohammad the Tribunal’s invitation had been returned unclaimed. In Xiao the applicant’s request for an adjournment was not received by the Tribunal. Wilcox J in a passage in his judgment in Xiao, which was quoted with evident approval by Hely J, said (at [37]):
‘The Tribunal issued an invitation that complied with the requirements of s425A. That invitation remained open. Notwithstanding my finding that [the migration agent] sent the fax requesting a postponement, it cannot be said that the Tribunal] was wrong in finding that [the applicant] did not appear at the hearing. If, as I believe, s425 imposes on the Tribunal only an obligation to issue an invitation, without any continuing obligation in relation to a reasonable opportunity to appear, that is the end of the matter; at least so far as this Court is concerned.’
On 5 April 2017, the Tribunal invited the applicant (via email) to attend a hearing before it on 4 May 2017 (CB 67-69).
Section 425A of the Act sets out the requirements of such an invitation and relevantly provides:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
The Court is satisfied that the hearing invitation (dated 5 April 2017) complied with the legislative requirements set out in s 425A of the Act. Relevantly, the invitation:
(a)was addressed to the applicant (CB 68);
(b)clearly indicated the date, time and means by which the applicant could attend that hearing (being on 4 May 2017 at 9.30am (VIC time) and providing the applicant with the address for the Tribunal’s Melbourne registry) (CB 68): s 425A(1) of the Act;
(c)was sent to the applicant via email (a method approved by s 441A(5)(b) of the Act) to the applicant’s nominated email address on 5 April 2017 (CB 67): s 425A(2)(a) of the Act;
(d)was given to the applicant 29 days prior to the scheduled hearing, exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (being 14 days after the day the person receives the notice): s 425A(3) of the Act; and
(e)contained a statement describing the effect of s 426A of the Act and explaining what would happen if the applicant did not attend the hearing (CB 69): s 425A(4) of the Act.
The Court is satisfied that the applicant was validly invited to attend a hearing as required by ss 425 and 425A of the Act.
On 4 May 2017, the Tribunal convened a hearing and a Malay interpreter was made available for the applicant. The applicant failed to appear at that hearing (CB 70-72).
As explained in NALQ (and the cases cited therein), the Tribunal’s obligation under s 425 of the Act is to invite the applicant to appear at a hearing. Here, the Tribunal did so. The applicant chose not to attend that hearing.
This does not amount to an arguable case of error on the part of the Tribunal.
Issue 2: whether the Tribunal failed to conduct a review of the application as required by s 414 of the Act
Section 414 of the Act provides:
414 Tribunal to review Part 7‑reviewable decisions
(1)Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7‑reviewable decision, the Tribunal must review the decision.
(2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
Section 415 of the Act sets out the powers that the Tribunal has when conducting its review in relation to matters of this sort and relevantly provides (emphasis added):
415 Tribunal powers on review of Part 7‑reviewable decisions
(1)The Tribunal may, for the purposes of the review of a Part 7‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c)if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e)if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.
…
As outlined above, the applicant here was invited by the Tribunal to attend a hearing before it on 4 May 2017 and failed to appear at that hearing. The applicant does not dispute this.
In circumstances where the applicant failed to appear at the scheduled hearing, s 415(2)(e) of the Act allows the Tribunal to exercise a power under s 426A of the Act in relation to the dismissal of the application.
The Tribunal did so here.
The Court is satisfied (having reviewed the matter on a reasonably impressionistic level only) that the Tribunal complied with its obligations under s 414 of the Act.
Issue 3: whether the Tribunal failed to notify the applicant of the Non-Appearance Decision as required by s 426B of the Act
Sections 426B of the Act provides that, where an applicant fails to appear at a hearing, and the Tribunal makes a non-appearance decision, the Tribunal must make a written statement and must notify the applicant of that decision.
Section 426B of the Act relevantly provides:
426B Failure to appear—Tribunal’s decisions, written statements and notifying the applicant
Decisions to which this section applies
(1)This section applies in relation to the following decisions (each of which is a non‑appearance decision):
(a)a decision to dismiss an application under paragraph 426A(1A)(b);
(b)a decision to reinstate an application under paragraph 426A(1C)(a) and to give directions (if any) under that paragraph.
Note:For similar provisions applying to a decision to confirm the dismissal of an application under section 426A, see sections 430 and 430A.
Written statement of decision
(2)If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:
(a) sets out the decision; and
(b) sets out the reasons for the decision; and
(c) in the case of a decision to reinstate an application:
(i)sets out the findings on any material questions of fact; and
(ii)refers to the evidence or any other material on which the findings of fact were based; and
(d) records the day and time the statement is made.
(3) A non‑appearance decision is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(4)The Tribunal has no power to vary or revoke a non‑appearance decision after the day and time the written statement is made.
Note:However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 426A(1D)).
Notice to applicant
(5)The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
…
As outlined above, the applicant in this matter failed to appear at a hearing before the Tribunal scheduled for 4 May 2017.
Following the applicant’s failure to attend that hearing, the Tribunal exercised its discretion to dismiss the application for non-appearance pursuant to s 426A(1A)(b) of the Act. In those circumstances, the Tribunal was required to make a written statement setting out its decision (as outlined above): s 426B(2) of the Act.
The Tribunal did so on 4 May 2017 by way of the Non-Appearance Decision (CB 76). That decision:
(a)confirmed that the “[a]pplication [was] dismissed under s 426A(1A)(b)” of the Act: s 426B(2)(a) of the Act;
(b)explained that the applicant had been invited to attend a hearing but failed to appear at the scheduled time and place, that no satisfactory reason for the non-appearance had been given and that, on that basis, the Tribunal had decided to dismiss the application without further consideration: s 426B(2)(b) of the Act; and
(c)recorded that the “statement” had been “made on 4 May 2017 at 3.07pm”: s 426B(2)(d) of the Act.
The Tribunal’s Non-Appearance Decision thus complied with the requirements set out in s 426B(2) of the Act.
The Tribunal notified the applicant of the Non-Appearance Decision on 4 May 2017 by way of a notification letter which was sent to the applicant via email (CB 73-75). That notification:
(a)was sent to the applicant within 14 days of the Tribunal making the Non-Appearance Decision (in fact, it was sent on 4 May 2017, being the same day that the decision was made): s 426B(5)(a) of the Act;
(b)was sent to the applicant via email to his nominated email address (a method approved by s 441A(5)(b) of the Act): s 426B(5)(b) of the Act; and
(c)contained a statement describing the effect of ss 426A(1B)-(1F) of the Act and explaining that the applicant could apply for reinstatement and what might happen if the applicant did (or did not) seek reinstatement of his application: s 425B(6) of the Act.
The Court is satisfied that the applicant was validly notified of the Non-Appearance Decision as required by s 426B of the Act and no arguable case of error arises in this regard.
Issue 4: whether the Tribunal failed to inform the applicant of his right to apply for reinstatement of his application following the Non-Appearance Decision
To the extent that the applicant suggests that he was not informed that he could apply for reinstatement, this fails on a factual level. As outlined above (in relation to issue 3), the applicant was notified of the Non-Appearance Decision by way of letter dated 4 May 2017. That letter included the following information (CB 74-75):
You may apply to us, in writing, for reinstatement of the application by 18 May 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.
The information sheet attached to that letter also provided the following information (Sathiendrakumar affidavit, p 4):
What happens if an application is dismissed?
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. 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.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
What happens if we reinstate the application for review?
If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.
On the basis of the above, the Court is satisfied that the applicant was informed of his right to apply for reinstatement and no arguable case of error arises in this regard.
Issue 5: whether the Tribunal’s decision to dismiss the applicant’s matter was unreasonable
As set out above (in relation to issue 1), the Court is satisfied that the applicant was validly invited to attend a Tribunal hearing scheduled to take place on 4 May 2017. The applicant failed to appear at that hearing.
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 application without any further consideration of the application or the information before it (pursuant to s 426A(1A)(b) of the Act).
In this matter, the Tribunal chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The Tribunal’s decision to exercise its powers in this regard is discretionary. As such, that decision must be made “reasonably”.
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 by email at 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 delivery failure notice received) (CB 67);
(b)after lodging his review application with the Tribunal, the applicant did not engage or make contact with the Tribunal;
(c)no further material had been provided to the Tribunal by the applicant in support of his review application;
(d)the applicant did not appear at the Tribunal hearing at the scheduled time of 9.30am (VIC time) on 4 May 2017 (CB 70-72); and
(e)the Tribunal waited more than five and a half hours (until 3.07pm on 4 May 2017) before determining that the applicant was not going to appear at that hearing and before the Tribunal member ultimately made the Non-Appearance Decision (CB 76).
The Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicant’s review application pursuant to s 426A(1A)(b) of the Act.
No arguable case of jurisdictional error arises in this regard.
Issue 6: whether the Tribunal failed to afford the applicant procedural fairness in relation to the Confirmation Decision
To the extent that any concern is raised in relation to the Tribunal’s Confirmation Decision, the Court notes that applicant was notified of the Non-Appearance Decision on 4 May 2017 (via email) (CB 73-75).
In relation to any procedural fairness concerns that the applicant might have regarding the Confirmation Decision, as outlined above (in relation to issue 4), the applicant was advised that he could seek reinstatement of his application within 14 days of receiving notice of the Non-Appearance Decision (CB 74-75 and the Sathiendrakumar affidavit, p 4). As confirmed above, this satisfied the Tribunal’s obligations under s 426B(6) of the Act.
The applicant here did not apply for reinstatement.
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.
In circumstances where no application for reinstatement was made, the Tribunal was obliged to confirm the decision to dismiss the application for review filed by the applicant and did so. The Tribunal provided a written statement to that effect, in the form of the Confirmation Decision, on 19 May 2017 (CB 81-82).
No arguable case of error arises in relation to the Tribunal’s procedural fairness obligations in this regard.
Oral submissions
As explained above, when the applicant appeared before this Court, he expressed concern that the Tribunal did not accept his evidence or his “reasons about what ha[d] happened to [him]”. The applicant explained that he was “a victim of circumstance” and that he did not wilfully fail to attend the Tribunal hearing. Rather, he stated, he was told by a friend that he did not need to appear at the hearing and, taking that advice, did not do so.
Unfortunately, there is no evidence before this Court to suggest that the applicant ever contacted the Tribunal (either before or after the Confirmation Decision was made) to explain his reasons for not attending the Tribunal hearing or to seek reinstatement of his application.
In circumstances where this information was not before the Tribunal, there can be no error on the part of the Tribunal for failing to consider or accept such information.
No arguable case of error arises in this regard.
Conclusion regarding merits of the substantive application
Assessed at a reasonably impressionistic level, the issues raised by the applicant in his proposed “grounds of review” and oral evidence before this Court do not identify any arguable case of jurisdictional error on the part of the Tribunal. Further, the Court has itself been unable to identify any arguable case of error of the sort that this Court can address.
This weighs heavily against granting an extension of time.
CONCLUSION
The lengthy delay in filing, the lack of a satisfactory explanation for that delay and the lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at a reasonably impressionistic level only) are such that it is not in the interests of the administration of justice for the Court to grant the applicant an extension of time in this matter.
The application for an extension of time (as amended on 16 May 2023) is, accordingly, refused.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 May 2023
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