EEM19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 536
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EEM19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 536
File number(s): MLG 3677 of 2019 Judgment of: JUDGE J YOUNG Date of judgment: 23 June 2023 Catchwords: MIGRATION – extension of time application – applicant filed 1060 days out of time – applicant did not attend hearing before Administrative Appeals Tribunal – applicant did not apply for reinstatement before Administrative Appeals Tribunal – found no reasonable explanation for delay – found grounds of substantive argument are not reasonably arguable – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44.
Migration Act 1958 (Cth), Div 4 Pt 7, ss 425, 425A, 426(1A)(b), 426A(1), 426A(1)(a). 426A(1)(b), 426A(1A)(b), 426A(1E), 426B(5), 441A, 441A(5), 441C(5), 476A(3)(a), 477(1), 477(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
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
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: 59 Date of hearing: 13 June 2023 Place: Melbourne Counsel for the Applicant: Litigant in person Counsel for the First Respondent: Mr Daly of Mills Oakley ORDERS
MLG 3677 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EEM19
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:
23 June 2023
THE COURT ORDERS THAT:
1.The Application filed 25 October 2019 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 25 October 2019 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 25 October 2016 confirming its decision to dismiss an application under s 426A(1A)(b) of the Act.
The Application was filed 1060 days after the expiry of the statutory timeframe for filing. 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 1 November 2015 on a Visitor (Class UD) (subclass 601) Electronic Travel Authority visa.
On 19 January 2016 the applicant applied for a Protection (Class XA) (subclass 866) visa (visa).
On 22 March 2016, a delegate of the Minister (delegate) refused to grant the visa.
On 22 April 2016 the applicant applied to the Tribunal for review of the delegate’s decision. In the application for review, the applicant nominated the email address <[email protected]> (applicant’s email address) for correspondence and provided the mobile number “xxxxx xxx83” (applicant’s mobile).
On 15 September 2016 the Tribunal emailed the applicant enclosing an invitation for him to attend a hearing on 7 October 2016 at 9.30am and with an information sheet attached. 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 29 September 2016 and 6 October 2016 the Tribunal sent an SMS hearing reminder to the applicant’s mobile. The SMS hearing reminder sent on 6 October 2016 was unsuccessful.
The applicant did not attend the hearing on 7 October 2016. Pursuant to s 426(1A)(b) of the Act the Tribunal dismissed the application for non-appearance (dismissal decision).
On 10 October 2016 the Tribunal sent a copy of the dismissal decision to the applicant’s email address. The notification letter sent with the dismissal decision informed the applicant that reinstatement of the application could be sought by 24 October 2016. 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 25 October 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 7 October 2016 at 9.30 am 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 7 October 2016 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 Tribunal further recorded that 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 25 October 2016. An Application for judicial review of that decision in this Court was therefore required to be made by no later than 29 November 2016. The Application for judicial review was not made until 25 October 2019.
Accordingly, the Application was made 1060 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 at [40]
In the Application, the applicant specified two grounds as to why they say it is necessary in the interests of the administration of justice to extend time, in the following terms (without alteration):
(1)I did not have enough money for the court appeal process at the time.
(2)I also can not to pay legal service for appeal to this court at that moment, so to make sure I in lawful I get volunteered in union of workers to help me in this appeal process
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 for filing.
At the hearing of this matter, the applicant was invited to elaborate and sought to add the following for consideration of the Court:
(a)the applicant did not have enough money to pursue an application in the Court;
(b)the applicant’s English language skills were poor;
(c)the applicant could not obtain legal representation.
Delay and explanation
The delay is extremely lengthy, being a period of almost three years, specifically, 1060 days out of time. 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 a plausible or acceptable explanation for the delay in making this Application.
Firstly, 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 1060 day delay. Further, the applicant has not provided any evidence of enquires made with the Court, such as in relation to fee waiver or any other steps taken to commence these proceeding in the statutory time frame.
Secondly, language difficulties and lack of English language skills are routinely encountered in the immigration jurisdiction. This cannot provide an adequate explanation for the delay.
Thirdly, 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). In addition, there is no evidence before the Court of any enquiries the applicant made in order to obtain legal advice or assistance, for example by seeking the assistance of legal aid or approaching community legal centres for assistance.
Fourthly, 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.
Fifthly, it is well established that impecuniosity is not a satisfactory explanation for the delay: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]. In addition, 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.
Considered individually or together, I am not persuaded that there is a reasonable explanation for the delay in the present case. The length and explanation for the delay weigh strongly against an extension of time in this matter.
Prejudice
The first respondent properly did not contend it would suffer any particular prejudice if the applicant was granted an Order allowing an extension of time, other than as to costs.
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, which are considered below, will of course be relevant to this. However, 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: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [65].
I accept the impact on the applicant is significant in that they would be returned 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.
Merits of the substantive Application
The time limitation reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a decision of the Tribunal. 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.
The case law makes clear that, for the purposes of an extension of time Application, the Court is concerned with whether the grounds available to the applicant are reasonably arguable.
There are five grounds of the substantive Application as follows (without alteration):
(1)The tribunal not consider many vital integer of my case
(2)The tribunal failed to consider many vital evidence that are relevant to my case
(3)The tribunal deprived me of procedural fairness.
(4)The tribunal member relied on incorrect information and decided my case using facts from some other tribunal case.
(a)The member has failed to do his duty
(b)The member failed to ask me questions about the types of harm relevant.
(5)According in section 44 of the administrative appeal tribunal act 1975 there is a description and authorizing me to make such action appeal to the federal circuit court
Although invited to elaborate on these grounds at the hearing, the applicant did not provide any further matters for the Court’s consideration.
I am not persuaded that the grounds of the substantive Application are reasonably arguable for the following reasons.
Firstly, grounds one, three and four are misconceived. It is true that the Tribunal did not consider the integers of the applicant’s claim, the applicant’s evidence or ask questions about the type of harm relevant to the applicant’s case. However, no error is disclosed by the Tribunal in not doing so. Under s 426A of the Act, when an applicant is properly invited to attend a hearing but fails to do so, s 426A(1A)(b) empowers the Tribunal to dismiss the Application without further consideration of the Application or information before it. Accordingly, the Tribunal was not required to consider the applicant’s protection claims. As the Tribunal did not consider the applicant’s protection claims the Tribunal did not rely on “incorrect information” or facts from “some other case”. As the applicant failed to appear at the hearing, the Tribunal could not ask questions about the types of harm relevant to the applicant’s case.
Further, the Tribunal’s exercise of the power in the present case was reasonable because the applicant had been properly notified of the hearing, including by an SMS reminder close to the hearing date, informed as to the consequence of failing to attend, and no reason for non-appearance was given nor a request for an adjournment made.
Additionally, the applicant did not file for reinstatement of the application within 14 days. Therefore the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act.
Accordingly, there is no reasonably arguable jurisdictional error by the Tribunal in relation to these grounds of the substantive Application.
As to grounds two and three in so far as they allege a denial of procedural fairness, firstly, these contentions are completely unparticularised and no further elaboration or particularisation was provided by the applicant at the hearing. Secondly, the Tribunal proceedings were conducted under Part 7 of the Act. Division 4 of Part 7 exhaustively codifies or confines the Tribunal’s procedural fairness obligations in this regard.
Under 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), the applicant was invited to a hearing before the Tribunal under s 425 of the Act. That invitation:
(1)gave the applicant notice of the day, time and place of the scheduled hearing;
(2)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;
(3)gave a period of notice that was at least the prescribed period, 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 12 April 2017 and was therefore given 35 days’ notice of the scheduled hearing; and
(4)contained a statement of the effect of s 426A of the Act.
It therefore complied with s 425A 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: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 at [5].
Accordingly, there is no reasonably arguable jurisdictional error by the Tribunal in relation to grounds two and three of the substantive Application on this basis.
As to ground five, it simply refers to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). No error on behalf of the Tribunal is asserted. Accordingly, ground five of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.
CONCLUSION
The Application in this case being 1060 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 fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 23 June 2023
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