Dzu21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 249
•19 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DZU21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 249
File number(s): CAG 51 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 19 March 2024 Catchwords: MIGRATION – Review of Registrar decision made out of time – where applicant fails to seek extension of time, elect for oral hearing and make written submissions – review application is susceptible to dismissal as incompetent Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254(1), 256(1)
Migration Act 1958 (Cth) s 494C
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 21.01, 21.02(1), Item 58 of Table 21.1
Migration Regulations 1994 (Cth) reg 4.31(2)
Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
Allison v Murphy [2021] FCAFC 232
Becharav Bates (supra), as well as from the decision of Robson as former trustee of Estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494
Brar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 846
Kaur v The Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 616
Khurana v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1068
Lamb v Sherman (2023) 298 FCR 79
Winn v Registrar Morgan [2022] FedCFamC2G 252
Division: General Federal Law Number of paragraphs: 26 Date of last submission/s: 7 February 2024 Date of hearing: Determined in Chambers Place: Sydney The Applicant: Unrepresented Solicitor for the Respondents: Ms K Wong, Sparke Helmore ORDERS
CAG 51 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DZU21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
1.The application for review filed on 15 December 2023 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 GIVEN:
Before the Court is an application for review of a decision by a Registrar who, on 21 November 2023, made an order summarily dismissing the proceeding, pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), together with an order the applicant pay the first respondent’s costs fixed in the amount of $4,189.38 (review application).
The following background is primarily taken from the first respondent’s submissions, but which does not appear to be in dispute.
BACKGROUND
On 21 March 2019, the applicant, who is a citizen of China, applied for a Protection (Class XA) (Subclass 866) visa (visa) on the basis that he feared harm because of his involvement in a land dispute (Court Book (CB) 1 to 23).
On 23 February 2021, a delegate of the first respondent (delegate) refused to grant the applicant the visa (CB 44 to 49).
On 3 August 2021, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision (CB 53 to 57). The application to the Tribunal was made outside the 28-day period prescribed by regulation 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations).
On 11 August 2021, the applicant was invited to comment on the Tribunal’s preliminary view that it may not have jurisdiction because the application appeared to have been made out of time (CB 61 to 63). The applicant did not respond to the invitation to comment within the time requested, or at all.
On 14 October 2021, the Tribunal notified the applicant of its decision (made on 13 October 2021) that it did not have jurisdiction to review the delegate’s decision (CB 67 to 68). The Tribunal was satisfied that the applicant had been notified of the delegate’s decision by email on 23 February 2021 which, by reference to s 494C of the Migration Act 1958 (Cth) (Act), was taken to be the date of notification. Accordingly, the Tribunal was satisfied that the applicant had not made his application within the requisite 28 day period.
These proceedings were commenced by an application to show cause filed with the Court on 6 November 2021. By orders made by a Registrar on 9 December 2021 the proceedings were to be listed for hearing of a summary dismissal on a date to be notified to the parties administratively. The proceedings were next called-over before a Registrar of the Court on 20 October 2023, on which occasion a timetable was made for submissions in relation to the issue of summary dismissal, for which purpose the proceedings were next listed for hearing before the Registrar (by Microsoft Teams) on 21 November 2023.
On 21 November 2023 at 10:45am (AEDT) the applicant appeared before the Registrar for hearing. Judgment was reserved and delivered later the same delay, at which time the Registrar made orders dismissing the proceedings with costs.
APPLICATION FOR REVIEW
At the time that the Registrar made the summary dismissal order, he had power to do so pursuant to s 254(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act), read together with r 21.01, item 58 of Table 21.1 and r 13.13 of the Rules. The combined effect of those provisions is that a Registrar of this Court has delegated power to summarily dismiss a proceeding.
Section 256(1) of the Court Act provides:
256 Review of power exercised by delegate
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
The exercise of the Registrar’s delegated power derives its validity from the availability of review by a Judge of this Court: see Bechara v Bates (2021) 286 FCR 166 at [3] per Allsop CJ, Markovic and Colvin JJ. The Registrar’s order, which was made on 23 November 2023, took effect as though it were an order of a Judge of this Court, on the basis that a Judge may be asked to make an order in place of the exercise of delegated authority.
While sometimes described as being a “check” on the s 254 power, the task which falls to this Court in reviewing the decision of the Registrar is not a review in the sense that the Court is required to consider the existence of error and, absent such error, must otherwise confirm the decision. A review application is not an appeal. Relevant principles from Becharav Bates (supra), as well as from the decision of Robson as former trustee of Estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494, were helpfully distilled by the Full Court in Allison v Murphy [2021] FCAFC 232 at [11] per Besanko, Colvin and Downes JJ.
By reference to s 256(1)(a), read together with r 21.02(1) of the Rules, any application to this Court for review of the Registrar’s decision was required to have been made by 30 November 2023.
At 10:35pm on 13 December 2023 the applicant lodged his review application which was accepted for filing at 4:38pm on 14 December 2023. An Affidavit in support of the review application was also filed annexing a copy of the orders made by the Registrar on 23 November 2023. The effect of having been accepted for filing after 4:30pm on 14 December 2023 (being after Registry hours) is that the review application is taken to have been made on 15 December 2023: see Lamb v Sherman (2023) 298 FCR 79 at [54] per Rares, Rofe and Downes JJ.
Even if the application had been filed and accepted within Registry hours on 13 December 2023, it would still have been almost a fortnight out of time. By reference to the date on which the application is taken to have been made, it is 15 days out of time.
On 18 January 2024, the review application was docketed to me, and I made the following orders:
1.By 4:00pm on 25 January 2024, any party who elects for the application for review of a Registrar’s decision filed on 13 December 2023 (review application) to proceed to an oral hearing must notify the Court of that preference by email to the chambers of Judge Given at: [email protected], following which the matter will be listed for a hearing at a date to be advised.
2.In the event that no election is made pursuant to order 1, the parties are taken to have consented to the review application being heard and determined in chambers pursuant to, and for the purposes of, s 136(4)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.The applicant must file and serve an outline of written submissions in relation to the review application by 4:00pm on 1 February 2024.
4.The first respondent must file and serve an outline of written submissions in relation to the review application by 4:00pm on 8 February 2024.
5.In the event that the applicant fails to comply with order 3 above:
a.order 4 above is vacated, and in lieu thereof the first respondent may file any written submission, including if only limited to the issue of costs; and
b.judgment is reserved to a time, and method, to be notified to the parties.
6.Otherwise, judgment is reserved from the date upon which the first respondent files written submissions pursuant to order 4 above to a time, and method, to be notified to the parties.
(January Orders)
No election was made by either party pursuant to order 1 of the January Orders. Accordingly, and pursuant to order 2 of the January Orders, the self-executing timetable commenced. The first respondent filed such submissions as ordered on 7 February 2024. No documents other than the review application and Affidavit in support have been filed by the applicant since the review application was made.
Extension of time
There is authority of this Court to the effect that where a review application is made outside the time prescribed, and no extension of time is sought, it is incompetent and should be dismissed as such: see Kaur v The Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 616 at [15], Khurana v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1068 at [11] to [12], Winn v Registrar Morgan [2022] FedCFamC2G 252 at [14] and Brar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 846 at [17].
By his written submissions, the first respondent quite properly acknowledges that the Court has a broad discretion under r 21.02 of the Rules to extend time for the review.
In AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426, I observed that in the cases referred to at [17] above, the Court had determined the review application on the papers, after affording the parties the opportunity to file written submissions, and said as follows [8] to [11]:
As Judge Vasta recorded in Brar (supra) at [15], that opportunity to file written submissions was given not only to ensure the efficient management of the proceedings, but also to give the applicant a further chance to seek an extension of time. In Brar, notwithstanding that applicant had filed an Affidavit (which his Honour treated as a submission) the applicant did not request (by that or any other document) an extension of time. It is open to infer the following:
a.had the applicant made such an application, Judge Vasta was open to consider it; and
b.that in the cases referred to at [17] above other than Brar, the respective applicants also made no such applications for an extension of time (by submissions or otherwise) and, accordingly, his Honour proceeded to determine the matters on the papers in circumstances where there were no applications for extension of time before him.
Arguably, in circumstances where an applicant (particularly an unrepresented applicant) is seeking review it might be taken as implicit that, if filed beyond seven days, the applicant is also desirous of seeking the indulgence of time being extended so that their application is competent to be heard.
However, the Rules provide a time limit for a reason. The prescribed period in r 21.02 of the Rules is also (no doubt intentionally) brief. Where applicants do not apply for review within time and do not seek, by the application itself or in any other way (including by submissions (whether written or oral)), a requisite extension, then the review application is liable to be dismissed as incompetent in the manner found by Judge Vasta in the aforementioned cases.
Unlike the cases cited at [17] above, I listed the present application for an oral hearing and did not determine it on the papers. As such, the applicant has appeared before the Court today and, in the course of an exchange with him specifically on the issue of his application being out of time, the applicant sought that time be extended.
In the present case, the applicant was given the opportunity to elect for an oral hearing, and did not do so. Had the applicant so elected, and appeared before the Court, then an application for extension of time could have been made and (more importantly) addressed. He also has chosen, for whatever reason, not to avail himself of the grant of leave to make written submissions by which he might also have made the application for an extension of time but, more crucially, substantively addressed that issue. As it stands, even if the Court were to take the application as implicitly seeking an extension there is no material before me to inform a number of factors which would require assessment in exercising the Court’s broad discretion to extend.
In particular there is no material from the applicant to address:
(a)the period of delay;
(b)the explanation for it, noting that while the time period in r 21.02 is brief,[1] a proper explanation is still required in the event that it is not met; and
(c)any prejudice to the parties.
[1] Together with the general principle that the longer the delay, the more persuasive the explanation for it must be: see Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] per Wigney J
As the Court also observed AHH22 (supra), each case must be considered on its own facts and circumstances and in the full context in which the review arises. In my view, the applicant has been afforded the opportunity to proceed to oral hearing but instead elected (by omission) to have the review application determined on the papers, without having sought or addressed the extension of time and therefore the review application should be dismissed as incompetent.
I would add that even absent being able to address the factors set out at [23] above, in circumstances where the Tribunal was correct in its assessment as to jurisdiction, I would not (even on an impressionistic level) be satisfied that the grounds of review raised in the originating application have a reasonable prospect of success. To the extent that the first respondent says[2] that the applicant additionally asserted before the Registrar that his lawyer failed to notify him of the delegate’s decision, there is no material before the Court to particularise this allegation (much less any evidence) to raise it to the level where it could be seen as having a reasonable prospect of success.
[2] First respondent’s written submissions filed 7 February 2024 at [17]
CONCLUSION
In the foregoing instances of this case, the review application made on 15 December 2023 is dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 19 March 2024
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