ECI20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 449
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ECI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 449
File number(s): MLG 3321 of 2020 Judgment of: JUDGE J YOUNG Date of judgment: 31 May 2023 Catchwords: MIGRATION – extension of time application – applicant filed 1214 days out of time – applicant did not attend hearing before Tribunal – applicant did not apply for reinstatement before Tribunal – found no reasonable explanation for delay – found grounds of substantive argument are not reasonably arguable – application dismissed. Legislation: Migration Act 1958 (Cth) ss 412, 414, 425, 425A, 426(1A)(b), (1B) to (1F), 426B(5), 441A, 441C(5), 476A(3)(a), 477(1) and (2).
Migration Regulations 1994 (Cth) reg 4.35D(3).
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Plaintiff M90/2009 v Minister for Immigration & Citizenship [2019] HCA Trans 279
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of hearing: 11 May 2023 Place: Melbourne Counsel for the Applicant: Self-represented litigant Counsel for the First Respondent: Mr Daly of Mills Oakley Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 3321 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ECI20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
31 May 2023
THE COURT ORDERS THAT:
1.The Application filed 4 September 2020 be dismissed.
2.The applicant pay the costs of the first respondent fixed in the sum of $4,189.38.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 4 September 2020 for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of the decision of the second respondent (Tribunal) dated 4 April 2017 confirming its decision to dismiss an application under s 426A(1A)(b) of the Act.
The Application was filed 1214 days after the expiry of the statutory timeframe. Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the Application is dismissed. The reasons for this decision follow.
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia on 8 February 2016 on a Visitor visa.
On 16 March 2016 the applicant applied for a Protection (Class XA) (subclass 866) visa (Visa).
On 5 May 2016 a delegate of the Minister (delegate) refused to grant the Visa.
On 10 May 2017 the applicant applied to the Tribunal for review of the delegate’s decision (review application). In the review application, the applicant nominated the email address [email protected] (applicant’s email address) for correspondence and provided the mobile number “xxxxx xxx65” (applicant’s mobile).
On 27 May 2016 the applicant emailed the Tribunal from the applicant’s email address and updated his postal address.
On 20 February 2017 the Tribunal emailed the applicant enclosing an invitation for him to attend a hearing on 16 March 2016 and attaching an information sheet. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant did not respond to the hearing invitation.
On 8 March 2017 and 15 March 2017 the Tribunal sent an SMS hearing reminder to the applicant’s mobile. Delivery of the 15 March 2017 hearing reminder failed.
The applicant did not attend the hearing on 16 March 2017. Pursuant to s 426(1A)(b) of the Act the Tribunal dismissed the application for non-appearance (dismissal decision).
On 16 March 2017 the Tribunal sent a letter to the applicant’s email address. The letter informed the applicant that, as the applicant had failed to attend the hearing, the Tribunal had decided to dismiss the application for review and informed the applicant that reinstatement of the application could be sought within 14 days. The dismissal decision was omitted from the 16 March 2017 email.
On 20 March 2017 the Tribunal sent another email to the applicant’s email address, instructing the applicant to disregard the email received on 16 March 2017, and attached a copy of the dismissal decision. The notification letter sent with the dismissal decision informed the applicant that reinstatement of the application could be sought by 3 April 2017. The applicant was also provided with an information sheet entitled “information about dismissal of applications” which informed the applicant that if reinstatement was not sought within 14 days the Tribunal must confirm the decision to dismiss the application.
The applicant did not apply for reinstatement of the application.
On 4 April 2017 the Tribunal confirmed its original decision to dismiss the application (confirmation decision).
The Tribunal’s decision
Dismissal decision
The Tribunal found that the applicant was invited pursuant to s 425 of the Act to appear before it on 16 March 2017 at 9.30am but did not appear at the scheduled time and place. The Tribunal found that no reason for the non-appearance was given. The Tribunal dismissed the application without further consideration of the application or the information before it.
Confirmation decision
The Tribunal recorded that on 16 March 2017 the application was dismissed pursuant to s 426(1A)(b) of the Act; the applicant had been notified of the dismissal decision; and had been given a copy of the written statement in accordance with s 426B(5) of the Act. The applicant had been advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. The Tribunal found that as the applicant did not apply for reinstatement within the 14 day period it must confirm the decision to dismiss the application.
APPLICATION FOR AN EXTENSION OF TIME
Was the Application filed late?
Section 477(1) of the Act requires that an Application to this Court be made within 35 days of the date of the migration decision.
The Tribunal’s decision was made on 4 April 2017. An Application for judicial review of that decision in this Court was required to be filed by 9 May 2017. The Application for judicial review was not filed until 4 September 2020.
Accordingly, the Application was made 1214 days after the expiry of the statutory timeframe.
Should the Court be satisfied to make an order extending time?
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an Application must be made if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819 (Katoa) at [12] the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant “but on the broader interests of the administration of justice.”
The Act does not specify any criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.
The principles regarding an Application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”.[1] Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(1)the extent of the delay and explanation for it;
(2)any prejudice to the respondent if an extension were granted;
(3)the impact on the applicant if the time was not extended;
(4)the interests of the public at large; and
(5)the merits of the substantive application.
[1]BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 [40]
Other than the accompanying affidavit which annexed the Tribunal’s decision, nothing further was filed in support of the request for an extension of the time.
In the Application filed 4 September 2020, the applicant specified the following grounds as to why they say it is necessary in the interests of the administration of justice to extend time (without alteration):
(1)I did not have a lawyer and advice that I could go to court for appeal.
(2)I was having financial hardship and unaware that I could seek for exemption filing fee at court.
At the hearing of this matter, the applicant was invited to elaborate as to why it is necessary in the interests of the administration of justice to extend time. However, the applicant made no further submissions for the Court’s consideration.
Delay and explanation
The delay is extremely lengthy, being in excess of three years and amounting to 1214 days. The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of long delay: Tran at [38]. In Katoa the majority observed that “if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”: Katoa at [18].
The applicant has not offered an acceptable or satisfactory explanation for the extremely lengthy delay in making this Application.
Firstly, it is well established that an inability to obtain legal advice or representation does not, of itself, provide a sufficient explanation for the delay: WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [37] (WQRJ).
Secondly, attached to the Tribunal’s decision was an information sheet headed “Information about decisions – MR Division”. That information sheet informs the applicant that judicial review of the Tribunal’s decision may be sought within 35 days of the date of the decision. It also provides the following information:
Immigration assistance
Our website ( and [sic] provides a list of organisations that may be able to provide immigration assistance or referrals to other services.
Accordingly, the applicant was provided with information regarding his right of review, the time frames that applied to it and where assistance may be sought.
Thirdly, there is no evidence before the Court as to the applicant’s asserted financial hardship. In the absence of any such evidence there is an insufficient basis upon which to assess the explanation: Plaintiff M90/2009 v Minister for Immigration & Citizenship [2019] HCA Trans 279. Whilst the Court is prepared to accept that the applicant may have had difficulty paying the filing fee, the explanation provided still does not adequately explain the 1214 day delay. Further, the applicant has not provided any evidence of enquires made with the Court in relation to fee waiver.
Fourthly, it is appropriate to take into account that impecunious litigants often commence applications in this Court for review of decisions of the Tribunal within the statutory limitation period: WQRJ at [37].
The very lengthy delay and the absence of a satisfactory and acceptable explanation for it weighs strongly against the grant of an extension of time. Indeed, given the length of the delay and the lack of any satisfactory explanation for it, this would be sufficient basis upon which to refuse to extend time.
Prejudice
The first respondent did not contend it would suffer any particular prejudice (except as to costs) if the applicant was granted an order allowing an extension of time.
However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
I assess this as a neutral consideration.
Public interest and impact on the applicant
There is a public interest in ensuring that decisions of the executive are made lawfully. The merits of the substantive grounds relied upon by the applicant will of course be relevant to this, which are considered below.
It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].
As to the impact upon the Applicant, if the extension of time is refused then the Tribunal’s decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act the refusal of an explanation for an extension of time forecloses any right of appeal.
I accept that a refusal to grant an extension of time would result in the Applicant returning to their country of nationality which is a circumstance they say they fear and that this is a matter weighing in favour of the grant of an extension of time.
Merits of the substantive application
While the discretion of the Court is broad, the Court should not permit an Application to proceed if it is bound to fail, and should accordingly decline to extend time.
In their Application filed 4 September 2020, the applicant specified the following six grounds of the substantive application as follows (without alteration):
(1)The Administrative Appeals Tribunal made decision on my Application by affirming not to grant my Application for protection visa dated on the 16 March 2017 due my application was dismissed under s 426A(1A)(b) of the Migration Act 1958.
(2)I was totally unaware about the hearing date, that result to a decision finalising my Application with a refusal but not giving a chance reinstatement. I realise only after notification on my VEVO application had expiry date. I than [sic] contacted the Tibunal to phone and seek consent but was never taken to consideration and said that they have no more jurisdiction.
(3)The Tribunal did not investigate but affirmed that I did not meet the protection via obligation and meet the criterian of refugee. According to Migration Act 1958 the Department of Immigration has notify me that I have submitted [sic] a valid application and also when I submitted to Tribunal for review the Tribunal acknoledged my Application as valid.
(4)According to Migration Act 1958 – sect 414, Tribunal must review the case in matter acordingly when the Application is lodged valid under the section 412 and make a decision that has to have fairness but in my matter Tribunal did not much do investigation in order to give a concluded decision. I think that Tribunal did not follow the Act.
(5)I was not given a chance to make an assessment in relation to s 5H(2) to define s 5H(1) of the Act and to provide the evidences for my claim and present my arguements to valid my application for protection visa with a hearing.
(6)Therefore, the decision made is not fair and I seek the court for an order (consent order) been given for my case.
Although invited to elaborate on these grounds at the hearing, the applicant did not provide any further matters for the consideration of the Court.
I am not persuaded that the grounds of the substantive application are reasonably arguable for the following reasons.
Ground one
Ground one is a bare statement that the Tribunal dismissed the applicant’s review application on 16 March 2017. No error on behalf of the Tribunal is asserted.
Accordingly, ground one of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.
Ground two
As to ground two, firstly, on 20 February 2017 the Tribunal invited the applicant to attend the hearing and that invitation complied with the requirements at s 425A of the Act. The invitation:
(a)gave the applicant notice of the day, time and place of the scheduled hearing;
(b)gave the applicant notice by one of the methods specified in s 441A of the Act, namely, transmitting it by email to his nominated email address, being the last email address provided to the Tribunal in connection with the review as required by s 441A(5) of the Act;
(c)gave a period of notice that was at least the prescribed period as required by s 425A(3), being 14 days after the date of receipt of the notice: reg 4.35D(3) of the Migration Regulations 1994 (Cth). As the hearing invitation was sent by email, the applicant was taken to have received it at the end of the day on which it was transmitted: s 441C(5) of the Act. The applicant was notified of the hearing on 6 February 2018 and was therefore given 35 days’ notice of the scheduled hearing; and
(d)contained a statement on the effect of s 426A of the Act, being the consequences of the failure to appear.
Pursuant to s 441C(5), as the Tribunal corresponded with the applicant by email in accordance with s 441A(5), the applicant is taken to have received the invitation at the end of the day on which it was transmitted.
Secondly, the Tribunal notified the applicant of the dismissal decision on 20 March 2017 by email to the applicant’s last nominated email address. That notification complied with s 426B of the Act, in that it:
(a)provided the applicant with a copy of the dismissal decision within 14 days;
(b)was sent to the applicant’s email address in accordance with s 441A(5);
(c)invited the applicant to apply for reinstatement within 14 days; and
(d)contained a statement describing the effect of s 426A(1B) to (1F).
Pursuant to s 441C(5) the applicant was taken to have received the notification at the end of the day on which is was transmitted.
Thirdly, there is no evidence before the Court that the applicant contacted the Tribunal at any stage after lodging his application for review, other than to update his postal address on 27 May 2016.
Accordingly, ground two of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.
Ground three
As to ground three, this ground is misconceived.
It is uncontested that the Tribunal did not investigate the applicant’s claims. However, there was no error in the Tribunal not doing so.
Pursuant to s 426A of the Act, if a person is invited under s 425 to appear before the Tribunal and does not appear at the scheduled time and place, as set out above, s 426A(1A)(b) empowers the Tribunal to dismiss the Application without further consideration of the Application or information before it. The Tribunal’s power in s 426A can only be exercised if the requirements set out in s 426A(1) are satisfied: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [63]. As to s 426A(1)(a), as set out above, the applicant was invited to a hearing before the Tribunal under s 425 of the Act.
As to s 426A(1)(b), the applicant did not appear on the day on which, or at the time and place at which, he was scheduled to appear. Accordingly, the requirements of s 426A(1)(b) were met. As the applicant was validly invited to a Tribunal hearing, the Tribunal was entitled to dismiss the Application by reason of the applicant’s failure to attend the hearing without further consideration of the Application or information before it. SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 at [5]. Accordingly, the Tribunal was not required to consider the merits of the applicant’s claim or the Applicant’s protection claims.
Further, the applicant did not file for reinstatement of the review application within 14 days. Therefore the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act.
Accordingly, ground three of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.
Ground four
Ground four refers to s 412 and s 414 of the Act and contends that the Tribunal’s decision “has to have fairness” and that the “Tribunal did not do much investigation in order to give a concluded decision.”
Ground four is misconceived.
Firstly, s 412 of the Act simply sets out the requirements for an application for review of a Part-7 reviewable decision, whilst s 414 of the Act requires the Tribunal to review such a decision if a valid application was made.
Secondly, for the reasons set out above, the Tribunal was not required to consider the merits of the applicant’s claim or the applicant’s protection claims.
Thirdly, as the applicant did not file for reinstatement of the review application within 14 days the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act.
As to the allegation that the Tribunal’s decision was unfair, this is wholly unparticularised and no further elaboration as to this ground was provided by the applicant at the hearing. To the extent that the applicant alleges procedural unfairness, that is rejected. As set out above, the applicant was validly invited to a Tribunal hearing, the Tribunal was entitled to dismiss the review application by reason of the applicant’s failure to attend the hearing without further consideration of the review application or information before it and, in the absence of the applicant filing for reinstatement, was required to confirm the dismissal decision by s 426A(1E) of the Act.
Accordingly, ground four of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.
Ground five
By ground five, the applicant contends that he was not given an opportunity to provide evidence and present arguments at a hearing. For the reasons already set out above, that ground must be rejected. The applicant was invited to a hearing and the invitation complied with the relevant legislative requirements. The applicant was afforded an opportunity to provide evidence and present arguments at a hearing.
Accordingly, ground five of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.
Ground six
Ground six asserts that “Therefore, the Tribunal’s decision was not fair”. As I understand that submission, and with specific reference to the word “therefore”, it is a contention that the Tribunal’s decision was unfair because of the matters in grounds one to five collectively. As set out above, none of those grounds discloses arguable jurisdictional error on behalf of the Tribunal. The contention that the Tribunal’s decision was unfair because of the matters relied upon in grounds one to five must therefore be rejected.
CONCLUSION
The Application in this case is 1214 days outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made if satisfied such extension is in the interests of the administration of justice.
Weighing all of the considerations above, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The Application is dismissed.
The Application will be dismissed with an order that the applicant pay the first respondent’s costs in the scale amount of $4,189.38.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 31 May 2023
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