DZM24 v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1079
•24 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DZM24 v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1079
File number(s): BRG 342 of 2024 Judgment of: JUDGE ZIPSER Date of judgment: 24 October 2024 Catchwords: MIGRATION – application for review of decision made by registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – de novo hearing – whether applicant has reasonable prospects of success on the substantive application – extension of time refused – costs ordered Legislation: Migration Act1958 (Cth) s 36(2), s 256(1), s 426A(1A)(b), s 426A(1E), s 426B(5), s 441A(5), s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 21.02(1), r 21.04, r 13.13(a)
Cases cited: Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166
DZM24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 851
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 10 October 2024 Place: Parramatta The Applicant: In person Solicitor for the Respondents: X Tran of Sparke Helmore ORDERS
BRG 342 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DZM24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
24 OCTOBER 2024
THE COURT ORDERS THAT:
1.Leave to file the application for review lodged on 21 September 2024 is refused.
2.The applicant pay the first respondent’s costs fixed in the sum of $500.
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 ZIPSER
INTRODUCTION
On 21 September 2024 the applicant lodged, pursuant to rule 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), an application for review (Review Application) of a decision of a registrar of this Court dated 6 September 2024: DZM24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 851 (Registrar Decision). The registrar summarily dismissed the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 4 June 2024. Since the Review Application was lodged outside the 7 days referred to in rule 21.02(1) of the Rules, the applicant requires an extension of time to make the Review Application.
Pursuant to rule 21.04 of the Rules, this review is a hearing de novo: see also Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 at [1]-[7].
BACKGROUND
On 2 March 2018, the applicant, a Malaysian national, first arrived in Australia on an Electronic Travel Authority (Class UD) (subclass 601) visa.
On 15 March 2018, the applicant lodged an application for a Protection (Class XA) (subclass 866) visa (visa).
On 4 October 2018, a delegate of the first respondent notified the applicant via email that his visa application had been refused on the basis that he did not satisfy s 36(2) of the Migration Act 1958 (Act) and, as such, was not a person to whom Australia owed protection obligations.
On 9 October 2018, the applicant lodged an application for review of the delegate’s decision in the Tribunal.
On 25 March 2024, the Tribunal sent the applicant an email attaching an invitation to attend a hearing on 20 May 2024. The applicant failed to attend the hearing on this date.
TRIBUNAL’S DECISIONS
Non-Appearance Decision
Owing to the applicant’s non-appearance at the scheduled hearing on 20 May 2024, the Tribunal decided to dismiss the application under s 426A(1A)(b) of the Act (Non-Appearance Decision).
The Tribunal outlined its reasons for dismissal as follows:
·It was satisfied that the applicant received proper notice about the hearing under s 441A(5) of the Act, in the form of an email invitation and two SMS reminders sent by the Tribunal five business days and one business day before the hearing date.
·On the day of the hearing, efforts were made by Tribunal staff to locate the applicant on the Tribunal premises prior to and after the time of the scheduled hearing.
·No explanation was provided by the applicant to the Tribunal as to his non-appearance (nor to request an adjournment).
The Tribunal notified the applicant of its decision by email on the same day of the hearing. The applicant was also put on notice that if he failed to apply for reinstatement of the application within 14 days of receipt of the Non-Appearance Decision, the Tribunal must confirm the dismissal of the application.
Confirmation Decision
On 4 June 2024, in circumstances where the applicant had not applied for reinstatement within 14 days, the Tribunal made a decision under s 426A(1E) of the Act confirming the Non-Appearance Decision (Confirmation Decision).
The Tribunal’s reasons for confirming the Non-Appearance Decision can be summarised as follows:
·It was satisfied that the applicant had been adequately notified of the Non-Appearance Decision and given the reasons of same in accordance with s 426B(5) of the Act.
·It was satisfied that the applicant had been notified of the opportunity to apply for reinstatement of the Non-Appearance Decision and the consequences if he did not do so.
·The applicant did not apply for reinstatement within the 14-day period.
PROCEEDINGS IN THIS COURT
Judicial review application
On 20 June 2024, the applicant filed an application with the Court under s 476 of the Act seeking judicial review of the Confirmation Decision (Originating Application). The grounds in the Originating Application were (verbatim):
There exist jurisdictional errors
1.The Tribunal applied its discretion unfairly in my application. Tribunal failed to consider my real claims and all materials, and also did not list the refusal grounds in the decision.
2.The Tribunal behaved improperly. The Tribunal should test if I am owed protection as a refugee according to relevant laws in Australia, but it failed to do it.
On 1 July 2024, the first respondent filed a response which sought, among other orders, an order under rule 13.13(a) of the Rules that the Originating Application be summarily dismissed.
On 9 August 2024, the Court made orders permitting the applicant to file and serve evidence and submissions in support of the Originating Application. The applicant did not take up this opportunity.
Summary dismissal hearing
On 6 September 2024, there was a hearing of the first respondent’s summary dismissal application before a registrar. The applicant appeared at the hearing by video link.
Following the hearing, and on the same day, the registrar made the Registrar Decision in which he summarily dismissed the Originating Application pursuant to r 13.13(a) of the Rules, on the basis that he was satisfied that the applicant had no reasonable prospects of establishing jurisdictional error in either decision made by the Tribunal.
On the afternoon of 6 September 2024, the Court emailed the Registrar Decision and orders to the parties.
Review application
On 21 September 2024 the applicant lodged the Review Application. The orders sought by the applicant in the Review Application were as follows (verbatim):
1.The order made by Registrar Cummings should be set aside.
2.The decision made by the Tribunal should be quashed.
3.The applicant’s case should be remitted to the Tribunal for reconsideration.
4.The costs paid to the first respondent should be waived.
The applicant also filed an affidavit affirmed on 13 September 2024 which stated (verbatim, anonymisation added):
1.I, DZM24, affirm that I am the applicant.
2.I am of […] ethnicity in Malaysia and I was mistreated due to my race.
3.I sought asylum and lodged a protection visa application, and it was dismissed in Jun 2024.
4.My judicial review application to FCFCOA was summarily dismissed on 6 Sep 2024 before Registrar Cummings. A copy of the order is attached.
5.I fear of harm if I return to Malaysia.
On 3 October 2024, the Court made orders including:
1.The review lodged by the Applicant on 21 September 2024 is listed for hearing at 10:15 am (AEST) on Thursday 10 October 2024 before Judge Zipser.
2.The Applicant is to file and serve and submission or evidence, including in relation to any application for extension of time pursuant to rule 21.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, by 4:00 pm on Monday 7 October 2024.
The applicant did not take up this further opportunity to file any submission or further evidence.
On 10 October 2024 there was a hearing of the Review Application. The applicant appeared in person by video link. Ms Tran, solicitor, appeared for the first respondent by video link.
Applicant’s submissions at hearing
The Review Application was lodged eight days out of time. The applicant, in the Review Application, did not apply for an extension of time. The Court permitted the applicant to make an oral application for an extension of time at the hearing.
The Court invited the applicant to make an oral submission as to why the Court should extend time. The applicant did not wish to make a submission. The Court asked the applicant why he did not lodge the Review Application by 13 September 2024. The applicant replied that he might have been late in checking his emails. In reply to this explanation, Ms Tran stated that the applicant attended by video link the delivery of judgment by the registrar on 6 September 2024.
The Court invited the applicant to make submissions concerning the substance of his judicial review application. The applicant stated words to the effect:
The AAT was unfair because it did not consider all material before it and did not give reasons for rejection.
The Court asked the applicant to identify material he contends was not considered. The applicant did not respond to this question.
First respondent’s submissions at hearing
Ms Tran opposed the grant of an extension of time for the applicant to make the Review Application. She acknowledged that the period of the applicant’s delay was short and there would be no prejudice to the first respondent if time was extended. However, two factors which counted against an extension of time were that the applicant’s explanation for delay was unsatisfactory and the judicial review application had no reasonable prospects of success.
In relation to the substance of the judicial review application, Ms Tran relied on submissions filed on 19 August 2024.
CONSIDERATION
Rule 21.02 of the Rules states:
21.02 Time for application for review
(1) For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) may be extended in a proceeding:
(a)by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b) with the consent of the parties to the proceeding.
As stated above, the applicant requires time to be extended to file the Review Application. Cases such as Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12] indicate that principal factors in considering whether to extend time are:
(1)length of applicant’s delay;
(2)applicant’s explanation for delay;
(3)prejudice to opposing party if time is extended; and
(4)merits of underlying application.
Length of delay: The applicant requires an extension of time of eight days. The first respondent described this period as “short”.
Applicant’s explanation for delay: The applicants provided no sworn evidence to explain his delay. His explanation in oral submissions was unsatisfactory. Among other reasons, he did not state when he first became aware of the Registrar Decision, why he might have been late in checking his emails and, in circumstances where he affirmed his affidavit on 13 September 2024, why he did not lodge the Review Application until 21 September 2024. The applicant’s unsatisfactory explanation goes against the applicant in determining whether the Court should extend time.
Prejudice to first respondent: The first respondent accepts there would be no prejudice to the first respondent if time is extended.
Merits of underlying application: In relation to the grounds in the Originating Application, the registrar stated in the Registrar Decision at [13]-[16]:
13. The primary theme in the applicant’s grounds is that the Tribunal erred by failing to consider his protection claims. The applicant reiterated this complaint during the summary dismissal hearing today. That complaint does not have reasonable prospects of success because:
(1)The Tribunal is not obliged to evaluate the applicant’s protection claims in determining whether to exercise the dismissal power in s 426A(1A)(b) of the Act (see, as one example of the many Federal Court authorities to this effect, BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 at [21] per Beach J); and
(2)There would have been no purpose in the Tribunal undertaking such an assessment when determining whether to make the confirmation decision given the mandatory nature of the obligation imposed by s 426A(1E) (AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10] per Perram J).
14. The complaint in ground one about the content of the Tribunal’s reasons does not have reasonable prospects of success because the decision record for the dismissal decision contains the reasons that are required by 426B(2) (CB 74) and the decision record for the confirmation decision contains the reasons that are required by ss 426A(1E) and 430 (CB 79-80). The applicant also does not have reasonable prospects of successfully establishing that the reasons given in support of either of the Tribunal’s decision records were vitiated by any form of legal unreasonableness. The powers conferred by s 426A, including the dismissal power in s 426A(1A)(b), must be exercised reasonably (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4]; (2018) 264 CLR 541 at 549). I am satisfied that the exercise of the s 426A(1A)(b) power in the matter at hand was reasonable and that the applicant has no reasonable prospects of successfully establishing the contrary position at a final hearing of the application for judicial review. The reasons the Tribunal gave as to why it exercised the power in the way it did self-evidently comprise an intelligible justification for the exercise of the dismissal power (Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]; (2014) 231 FCR 437 at 446-447), namely, the applicant had failed to appear at the hearing despite being validly invited to same and reminded of the hearing twice by SMS (CB 74).
…
15. A reasonableness argument directed to the confirmation decision could enjoy no reasonable prospects of success given the mandatory nature of the obligation imposed by s 426A(1E) of the Act (AYT16 at [10] per Perram J).
16. As to the complaint of unfairness in ground one, in circumstances where … the statutory preconditions to the making of the Tribunal’s two decisions were enlivened in the matter at hand, it is not otherwise apparent how the applicant could succeed in a procedural fairness challenge given the confined nature of the procedural fairness obligations imposed on the Tribunal by Part 7 of the Act (BIK22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 794 at [55]-[58] per Judge J Young). The Tribunal was not obliged to invite the applicant to comment on whether the Tribunal should proceed under s 426A(1A)(b), prior to the Tribunal so deciding (SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789 at [35] per Middleton J), nor did the applicant’s failure to appear at the hearing oblige the Tribunal to “search its records to seek to find another way of communicating with the applicant, or to adjourn the hearing” (SZTHQ v Minister for Immigration and Border Protection [2014] FCA 1231 at [41] per Murphy J).
The Court agrees with this analysis. The Court also agrees with the registrar’s conclusion that the applicant has no reasonable prospects of successfully prosecuting his application.
The applicant added in oral submissions at the hearing on 10 October that the Tribunal did not consider all material before it. But the applicant was unable to identity the material he contends was not considered. The applicant also added in oral submissions at the hearing that the Tribunal did not give reasons for rejection. However, the Tribunal gave reasons for each of its decisions.
In the Registrar Decision at [17]-[19], the registrar additionally considered whether the Tribunal had power to make the decisions it did. The Court agrees with the registrar’s analysis and conclusion that the Tribunal had power to make the decisions it did.
In relation to whether the Court should extend time, the applicant did not ask the Court to consider any factors in addition to the factors in paragraph 31 above.
Upon weighing the above factors, the Court considers it is not appropriate to extend time for the applicant to file the Review Application. This is due to the unsatisfactory explanation provided by the applicant for the delay and the underlying application having no reasonable prospects of success.
COSTS
There is no reason why costs should not follow the event. The first respondent sought an amount of $500. The applicant did not object to this amount. The Court is satisfied that this amount is appropriate in the circumstances and an order will be made accordingly.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 24 October 2024
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