ECD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 775
•22 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ECD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 775
File number(s): MLG 3316 of 2020 Judgment of: JUDGE A KELLY Date of judgment: 22 April 2021 Catchwords: MIGRATION – Protection (Class XA) (subclass 866) visa – review of the Administrative Appeals Tribunal decision – Tribunal finding it lacked jurisdiction – review application lodged out of time – second application for judicial review – where applicant did not disclose first application for judicial review of decision by the Tribunal – where applicant did not disclose first application had been dismissed – whether applicant had been notified of the Tribunal’s decision – where applicant sought extension of time – whether application for extension of time should be summarily dismissed on the basis the application had no reasonable prospect of success – application dismissed. Legislation: Migration Act 1958 (Cth), ss 65, 66, 411, 412, 477, 486D, 494B, 494C
Migration Regulations 1994 (Cth), reg 4.31Cases cited: Agar v Hyde (2000) 201 CLR 522
BMY18 v Minister for Home Affairs [2019] FCAFC 189 (2019) 271 FCR 517
BTI15 v Minister for Immigration and Border Protection (No 2) [2021] FCA 355
DZY17 v Minister for Home Affairs [2018] FCAFC 196 (2018) 267 FCR 673
GLV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2525
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 (2016) 152 ALD 478
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
Spencer v Commonwealth of Australia (2010) 241 CLR 118
TCWY v Minister for Immigration and Border Protection [2018] FCA 804 (2018) 231 FCR 455
Number of paragraphs: 45 Date of hearing: 14 April 2021 Place: Melbourne Counsel for the Applicant: the applicant in person Counsel for the First Respondent: Mr Gardner ORDERS
MLG 3316 of 2020 BETWEEN: ECD20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
22 APRIL 2021
THE COURT ORDERS THAT:
1.Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.Pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth), there be judgment for the first respondent upon the application made pursuant to s 477(2) of the Migration Act 1958 (Cth) for an extension of time within which to apply (on a second occasion) for judicial review of the decision of the second respondent refusing his application for a Protection (Class XA) (Subclass 866) visa.
4.The application dated 14 September 2020 be dismissed.
5.The applicant pay the costs of the first respondent fixed in the sum of $3,737.
REASONS FOR JUDGMENT
JUDGE A KELLY
Introduction
By originating application filed on 14 September 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 November 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Protection (Class XA) (subclass 866) (visa) pursuant to s 65 of the Migration Act 1958 (Act).
In this, the second such application for judicial review, the applicant did not disclose that he had made an earlier application for judicial review of the subject decision. Nor did he disclose that such application had been dismissed on 9 September 2019. In such circumstances, the present application is incompetent and must be dismissed. For those reasons, it would be contrary to the administration of justice to grant an extension of time in this proceeding.
Background
The background to the application is essentially common ground.
The applicant, aged 30 years, is a male citizen of Malaysia who first came to Australia in 2016. He last came to Australia in 2017 as a visitor and on 18 January 2018 applied for the visa. In completing his application, the applicant provided an email address and agreed that the Department could communicate with him by transmissions to that address: Ques 37-38.
It appears that in the course of processing the application, the applicant requested that his interview with the Department be rescheduled on a number of occasions.
On 20 September 2018, the visa application was refused and on that date a copy of the delegate’s Decisional Record was transmitted to the applicant’s email address.
On 22 October 2018, the applicant sought review of the delegate’s decision before the Tribunal. In a Case Note dated 25 October 2018, extracted from the Tribunal’s file, it was recorded that the application for review appeared to be out of time.
On 26 October 2018, the Tribunal invited the applicant to comment on the validity of the application. The Tribunal put to the applicant that the application appeared to have been made out of time, and invited the applicant to comment on the validity of the application by 9 November 2018 after which time the issue would be considered.
By an email transmitted to the Tribunal on 3 November 2018, the applicant responded to the Tribunal’s invitation, apologising for his delay in lodging his application. The applicant stated that his failure to do so “was my big mistake” and “Very my biggest mistake.” He further said that he had been following his visa expiry date online and that he had not been aware of the 28 day period for applying for review to the Tribunal.
On 13 November 2018, the Tribunal made a decision that it had no jurisdiction to review the decision and provided a written statement of its reasons for reaching that decision: [1]. The Tribunal identified a period of 28 days, commencing on the date on which the applicant had been notified of the delegate’s decision, as the period within which the application for review by the tribunal must be made (citing reg 4.31(2) of the Migration Regulations 1994 (Cth)): [2]. It reasoned that as the applicant had been notified of the decision on 20 September 2018, the last date for lodging the application for review with the Tribunal was 17 October 2018. Further, the Tribunal was satisfied that the applicant had been so notified: [3]-[4], [6]. The Tribunal also observed that it had afforded the applicant an opportunity to address the apparent failure to lodge an application within the prescribed period and noted that it had no discretion to waive the statutory time limits: [5], [7]. The Tribunal found that as the application had not been lodged until 22 October 2018, it had not been made within the prescribed period and, for that reason, it did not have jurisdiction in the matter: [9]-[10].
On 14 November 2018, the Tribunal notified the applicant of its decision.
On 12 December 2018, the applicant lodged an application for judicial review of the Tribunal's decision by the Federal Circuit Court of Australia (SYG3489/2018) (first application).
On 9 September 2019, the application for judicial review was dismissed: GLV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2525 (Judge Driver) (GLV18). Before me, the solicitor-advocate for the Minister confirmed that he was unaware of any application being made to the Federal Court of Australia seeking leave to appeal that decision. Indeed, as appears from the grounds upon which an extension of time is sought, it is implicit that the applicant perceives the present application as being such an appeal.
Procedural History
On 14 September 2020, the applicant lodged a second application for judicial review of the Tribunal's decision with the Federal Circuit Court of Australia (file number MLG3316/2020) (second application). The applicant did not disclose the fact of his first application, whether under the heading Other Court Proceedings or elsewhere on the second application form.
On 14 September 2020, the applicant also filed an affidavit to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review.
On 1 October 2020, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by judicial error. In terms, the response put the applicant squarely on notice that the extension of time was opposed on the basis that the present application had been made well outside of the 35-day time limit prescribed by the Act, that the explanation for the delay was unsatisfactory and further that there was insufficient merit in the proposed grounds of the application.
At the first directions hearing, on 17 February 2021, orders were made, by consent, listing the matter for a summary dismissal hearing. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions. None of the opportunities provided by that order were taken.
On 29 March 2021, a submission was filed on behalf of the Minister which was responsive to the matters in the application.
At the hearing, the applicant appeared with the assistance of an interpreter. While the applicant not infrequently addressed the court directly in English and did so before the interpreter had completed his translation of the statements being made, for the most part I endeavoured to ensure that all communications occurred via the interpreter.
Consideration
As the applicant was self-represented before me, I have examined the materials on the court book together with the decision of the tribunal the subject of the application. I have set out above the substantive reasoning for the Tribunal’s decision.
In light of the relief being sought, and having regard to the circumstance that the applicant is self-represented, it is convenient to consider the application from a number of perspectives.
Summary judgment
The order made on 17 February 2021, by consent, provided that the application would be listed for “a summary dismissal hearing”. Power is conferred on the court to give judgment in a proceeding in circumstances where, as here, it is being defended: Federal Circuit Court of Australia Act 1999 (Cth), par 17A(2)(a). The power to do so is conditioned upon the court being satisfied that the other party has no reasonable prospect of successfully prosecuting their proceeding: FCCA Act, par 17A(2)(b); Federal Circuit Court Rules 2001, r. 13.10(1)(a).
The application for summary dismissal was made in relation to the application for an extension of time and was advanced on the substantive basis that the application was incompetent. Expressed in other terms, the suggested incompetence of the application itself was relied upon as establishing that the application for an extension of time had no prospect of success.
It must be accepted that caution is required in the determination of an application, including an application for an extension of time, which, in effect, determines a proceeding summarily:
cf Agar v Hyde (2000) 201 CLR 522, [57]; Spencer v Commonwealth of Australia (2010) 241 CLR 118, [24]. Upon such an application, the correct approach for the court is to consider whether the grounds of review are properly to be regarded as being “arguable”, “reasonably arguable”, “sufficiently arguable” or [one that] has “reasonable prospects of success”: cf MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, [62]-[63], aff’d on appeal [2016] FCAFC 110, [38].
Part 8A of the Act, Restrictions on court proceedings, comprises ss 486A – 486D. A person must not commence a proceeding in this court respecting a Tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding that has already been brought by that person in that or any other court in relation to the decision: Act, s 486D(1). A like proscription is imposed upon a person who commences a proceeding in other Federal Courts: Act, s 486D(2)-(3).
The originating application did not disclose that the applicant had made an earlier application for judicial review or that such application had been dismissed.
The operative requirements of s 486D have been construed as imposing a jurisdictional precondition which must be met at the time a proceeding is commenced. Failure to satisfy that mandatory requirement renders an application for judicial review incompetent. Furthermore, non-compliance with this precondition is incapable of being cured by the filing of an amended application. Finally, the court has no jurisdiction to relieve an applicant of a failure to make such disclosure: TCWY v Minister for Immigration and Border Protection (2018) 231 FCR 455; [2018] FCA 804, [26]-[30] (Perry J); DZY17 v Minister for Home Affairs (2018) 267 FCR 673; [2018] FCAFC 196, [29] (Besanko, Griffiths and White JJ). In the latter appeal, the Court considered Perry J’s reasoning in TCWY to have been clear, comprehensive and plainly correct and further as being applicable to the proper construction of s 486D(1).
Upon those principles and the applicant’s failure to disclose the fact of his earlier application for judicial review it must follow that the present application is incompetent and that, for this reason, the application for an extension of time has no reasonable prospects of success.
Notification of decision
Before me, the applicant stated, in effect, that the Tribunal’s decision that it had no jurisdiction was tainted by error in the circumstance that it had erroneously found the application for review had been lodged out of time. This contention had not been articulated anywhere in the originating application. Nor had it been advanced by the applicant’s only affidavit. It was also entirely inconsistent with the applicant’s communication with the Tribunal on 3 November 2018 (above). Furthermore, at no point since 17 February 2021, when orders were made by consent, has the applicant filed any amended application, affidavits or submissions whereby the issue now being advanced might have been identified.
The application made by the applicant on 18 January 2018 was for a Protection visa.
The subject decision refusing to grant a protection visa was a Part 7-reviewable decision: Act, s 411(1)(c). Part 7 of the Act, which provides for the review of Part 7-reviewable decisions relevantly provides that an application to the Tribunal for review must be given to the Tribunal within the period prescribed “being a period ending not later than 28 days after the notification of the decision”: Act, par 412(1)(b). Further, regulations made for the purposes of par 412(1)(b) may specify different periods in relation to different classes of Part 7-reviewable decisions: Act, s 412(4). Regulation 4.31 provides different periods for the lodgement of an application for review by the tribunal of a Part 7-reviewable decision and distinguishes between those cases where an applicant is, or is not, in immigration detention.
In the present case, the Tribunal correctly recognised that the applicant was not immigration detention at the time when he was notified of the delegate’s decision: [2]. It also correctly recognised that by reg 4.31(2), the period within which the applicant must give his application to the Tribunal was 28 days, commencing on the day that he had been notified of the decision.
An applicant must be notified of a decision to grant or refuse a visa in the prescribed way: Act, s 66(1). In particular, by par 66(2)(d)(ii) of the Act, such notification letter must state the time in which the application for merits review may be made. Failure to give notification of a decision does not otherwise affect its validity: Act, s 66(4).
One of the methods by which the Minister is authorised to give a document to a person is by transmitting the document by email to the last email address that has been provided to the Minister for the purposes of receiving documents: Act, par 494B(5). Where the Minister has given a document to a person by email, such person is taken to have received the document at the end of the day on which it was transmitted: Act, par 494C(5).
It will be recalled that on 13 November 2018 the Tribunal made a decision that it did not have jurisdiction to consider the application on the substantive basis that on 20 September 2018 the applicant had been notified of the delegate’s decision, made on that date, to refuse the visa application. Contrary to the applicable regulation, the application had not been given to the Tribunal within 28 days commencing on the date on which he was notified of that decision.
However, the solicitor-advocate for the Minister, in the discharge of an accepted obligation to act as model litigant drew the court’s attention to a decision of the Full Court of the Federal Court of Australia in BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189 (BMY18). There, Reeves, Perram and Charlesworth JJ held that GLV18 (amongst other judgments) was “not correctly decided and should be overruled”: [38]. The substantive basis upon which the Court reached that conclusion was that the content of the notification letters given pursuant to s 66 of the Act did not clearly state the matter required by par 66(2)(d)(ii); namely, the time in which the application for review might be made: [55]. The reasoning in that appeal exposed the patchwork manner in which the subject notification letter addressed the requirements of s 66 and, in particular, the requirement to state the time within which the application for merits review may be made.
More recently, in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31, Thawley J, with whom Flick and Bromwich JJ agreed, held that cases which concerned par 66(2)(d)(ii) of the Act “hinge upon a simple factual enquiry into whether or not the notification letter states the time within which the application for review may be made” and that this fell to be “resolved by examining the particular terms of the relevant notification letter”: [23]. Further, his honour observed that insofar as BMY18 expressed a view that other decisions had not been correctly decided, such conclusions were plainly obiter dictum: [9]. Thawley, J identified the importance of not departing by way of judicial explanation from the text of par 66(2)(d)(ii) and that whether or not a particular notification met the requirement that it state the time in which an application for review may be made was a question of fact: [10].
In the present case, the notification letter, which was arranged under a series of subheadings, variously: notified the applicant of the delegate’s decision; contained statements respecting his review rights; advised of the various means by (including the registries at) which an application for review, and; addressed a series of matters that are not material to the present application. As concerns the present issue, the notification letter stated that the department could not consider the application any further but that the applicant was entitled to apply to the Tribunal for a merits review. More particularly, it stated:
An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
Please note that this review. Is prescribed in law and an application for merits review may not be accepted after that date. (Emphasis added)
In my view, in contrast with the serial difficulties attending the notification letter in BMY18, in this case the applicant was not required to undertake any sort of patchwork exercise in piecing together the information upon which he could discern the time within which the application for review might be made. The application for review was not given to the Tribunal within time.
Extension of time
For the sake of completeness, I have considered the application for an extension of time.
By s 477 of the Act, an application for judicial review must be made within 35 days of the date of a migration decision. However, power is conferred on the court to order that the period within which the application must be made be extended where an application has been made in writing, specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the court is satisfied that it is necessary in those interests to do so: Act, s 477(2). In the present case, the Tribunal’s decision was made on
13 November 2018 and thus the period within which a valid application might have been made expired on 18 December 2018. The present application was accordingly made nearly 21 months out of time. The application contained an application for an extension of time. Conformably with the exercise of power to dismiss an application on a show cause hearing, caution must also be applied where the power to extend the time for bringing a proceeding for judicial review is exercised adversely to an applicant. The need for caution arises in part by reason of the need to avoid a mechanistic or unduly simplistic evaluation of whether the criteria to be considered in relation to an application for an extension are satisfied: BTI15 v Minister for Immigration and Border Protection (No 2) [2021] FCA 355, [9]-[10].
The grounds upon which the applicant submitted it to be in the interests of the administration of justice that an extension to be granted were expressed briefly. The applicant stated that he did not have enough money “for the Court of Appeal process at the time” and that he could not pay for legal services for an appeal. Those grounds implicitly recognised that the applicant well understood (as he confirmed in the course of the hearing) that his application for judicial review had already been decided and that what he in fact desired to pursue was an appeal.
At all events, treating the application as being for an extension of time, the present application is many months out of time and the explanation for the delay, such as it is, does not weigh heavily, if at all, in favour of a conclusion that it would be in the interests of the administration of justice to grant an extension. It may be assumed in the applicant’s favour that the Minister would suffer no prejudice if the extension was granted.
However, for the reasons above, I do not consider it would be appropriate to grant an extension by reason that the application is incompetent. Upon that basis, it would not be in the interests of the administration of justice to allow an application to proceed where the applicant could not demonstrate an arguable case for the relief claimed upon the grounds of review, the submissions made or otherwise. As noted above, the applicant has not taken the opportunities afforded to him in this proceeding to file any submissions or further evidence.
Conclusion
For these reasons, I am satisfied that the power conferred on the court to grant summary judgment is engaged and that such power should be exercised in the circumstance that the application for an extension of time has no reasonable prospect of success. It follows that the originating application should be dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 22 April 2021
0
8
0