EKK19 v Minister for Immigration

[2020] FCCA 1489

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKK19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1489

Catchwords:
MIGRATION – Review of decisions – judicial review – grounds of review – unreasonableness.

MIGRATION – Review of decisions – judicial review – application – extension of time – delay.

Legislation:

Migration Act 1958 (Cth), ss.426A(1A)(b), 477(1), (2)

Cases cited:

MZZZL v Minister for Immigration and Anor [2014] FCCA 1309

SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234

WZAWB v Minister for Immigration and Anor [2016] FCCA 1345

Applicant: EKK19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 956 of 2019

Judgment of: Judge Jarrett

Hearing date: 4 June 2020

Date of Last Submission: 4 June 2020

Delivered at: Brisbane

Delivered on: 8 June 2020

REPRESENTATION

The Applicant in person assisted by a Malaysian interpreter

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application for an extension of time within which to file an application for judicial review filed on 7 November, 2019 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 956 of 2019

EKK19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time within which to commence an application for review by which he wishes to challenge a decision of the second respondent made pursuant to Part 7 of the Migration Act 1958 (Cth). That decision affirmed a decision of a delegate of the first respondent not to grant to him a Protection (Class XA) (Subclass 866) visa. The first respondent opposes the grant of an extension of time.

2. The applicant’s proposed application is some 590 days late and has no discernible merit.  For the reasons that follow it must be dismissed.

3. The applicant arrived in Australia as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa on 11 November, 2016.  He is a citizen of Malaysia.  On 10 February 2017, he applied for a protection visa.  His claims to fear harm can be summarised as follows:

   a)Malaysia violated the “Malaysia Agreement 1963” by causing long-term human right abuses in North Borneo Sabah and Sarawak.

   b)He volunteered for the Sabah Sarawak Union, United Kingdom.  Their objective was to collect petitions to deliver to the United Nations requesting that the British government review the validity of the “Malaysian Agreement 1963”. Volunteers had been threatened, and some charged with sedition.

   c)The government were granting citizenship to illegal Philippino immigrants on the basis that they would convert to Islam and vote for the government. This resulted in an increase in crime rate in Sabah. The authorities would not protect those who are against the government. He would not be able to relocate because of the racist environment.

4. His application was refused by a delegate of the first respondent on 21 March, 2017.  The applicant applied to the second respondent for review of the delegate’s decision on 1 April, 2017.  Because the second respondent could not determine the application in the applicant’s favour on the material before it, on 20 December 2017, the second respondent invited the applicant to attend a hearing on 1 February, 2018.  The hearing invitation requested that the applicant provide a response to it within seven days.  It provided that in the event he did not attend the scheduled hearing, the second respondent may dismiss the application without any further consideration of the application or the information before it.

5. On 29 December, 2017 the applicant wrote to the second respondent requesting a postponement of the hearing (faithfully reproduced):

   Dear Sir,

   Good afternoon, how are you? I just checked my email and received an email from tribunal regarding the invitation appointment for hearing session On 1 Jan 2018.

   I would like to know if there is possibility to postpone the date of appointment. This is because i am currently at Northern which is away from Melbourne.

   I really hope you could consider my request and thank you for your consideration.

   Your truthfully,

6. On 19 January, 2018 the second respondent advised the applicant that his request was refused and that the hearing would proceed as scheduled.  On 1 February, 2018 the applicant failed to appear at the hearing.

7. On 2 February, 2018 the second respondent dismissed the application pursuant to s.426A(1A)(b) of the Act. The second respondent delivered a written statement about its dismissal of the application. After recording the request for the postponement and the refusal of that request, the second respondent recorded:

   4. The review applicant did not specify in his request where he was planning to be at the time of the hearing, and there is no indication from his correspondence where he would be located at the time and for what reason. For this reason the Tribunal decided to proceed with the hearing date as planned.

   5. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender. No satisfactory reason for the non-appearance has been given.

   6. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal

8. On 5 February, 2018 the applicant was notified of the dismissal decision, advised that he could apply for reinstatement within 14 days, i.e., by 19 February, 2018 and that a failure to do so would result in confirmation of the dismissal decision.  The notification was sent to his address for the receipt of documents in his application.  The applicant made no application for reinstatement.  On 20 February, 2018 in the absence of any application for reinstatement, the second respondent confirmed the dismissal decision.  Again, the second respondent delivered a written statement of its reasons for its decision:

   1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

   2. On 2 February 2018 the Tribunal dismissed the application under s.426ACIA)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

   3. The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

   4. As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.

   DECISION

   5. The Tribunal confirms the decision to dismiss the application

9. The applicant filed the present application on 7 November, 2019. In it, the applicant seeks an order that the time for making the application be extended pursuant to s.477(2) of the Act. An extension is necessary because s.477(1) of the Act prescribes a 35 day period within which an application to review a decision of the second respondent in cases such as this must be commenced. Time commences to run from the date of the decision. Thus, any review application needed to be commenced on or before 27 March, 2018. The application is 590 days late.

10. Section 477(2) of the Act permits the Court to grant an extension of time if the extension of time application has been made in writing and the Court is satisfied that it is necessary in the interests of the administration of justice.

11. While the factors relevant to the Court’s consideration of whether time should be extended are unconfined, they might include whether there is any prejudice to the respondent, the extent of the delay, whether there is an adequate explanation for the delay, and whether the substantive application is sufficiently arguable to support the application for an extension of time.  The substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.  Each case needs to be assessed according to its own facts.

12. I accept the first respondent’s submission that the delay in making the application is inordinate.  Despite being given the opportunity to do so by a directions order made on 29 January, 2020 the applicant has filed no evidence to support his extension application.  There is simply no explanation for his failure to commence his application within time.

13. As the first respondent points out, in his grounds for the application for an extension of time, the applicant contends that he “…did not get to find the right person to deal with the visa” and “…did not have enough budget to go and meet person for this visa to get renew.”  But that goes no way to explaining why he did not commence his review application within time.

14. As the first respondent submits, it was for the applicant to inform himself of his review rights and the applicable time limits.  Financial issues are not usually considered to be an adequate explanation for delay: WZAWB v Minister for Immigration and Anor [2016] FCCA 1345 at [90], citing MZZZL v Minister for Immigration and Anor [2014] FCCA 1309 at [11] and SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24].

15. The applicant did not file any written submissions in support of his application as he was directed to do on 29 January, 2020.  In his oral submissions to me, he did not seek to advance any reason for his delay.

16. The first respondent does not suggest that there is any particular prejudice to him if the extension is granted, but does point out that there is a public interest and benefit in the finality of administrative decision making.

17. The applicant proposes the following grounds of review in his application as filed (faithfully reproduced):

    1.  The tribunal did not make it’s decision on according in law, in that

    i – the tribunal committed jurisdiction error by taking indoor account irrelevant confideration.

    ii – the tribunal was made dicission without looking at the evidence of the applicant.

18. The applicant was given the opportunity to file an amended application that better set out his case, but he has not taken up that opportunity.

19. In argument before me, the applicant was unable to articulate any reason why the second respondent’s decision was erroneous, let alone affected by jurisdictional error.  His arguments were nothing more than a request that I grant him a visa – any visa so that he could stay in Australia and get a job and work.   Despite my attempts to explain to the applicant the function of the Court on an application such as this, he did not divert from his request for a visa.

20. Even at an impressionistic level the applicant’s grounds and the applicant’s proposed application more generally enjoy no prospect of success.  The second respondent’s reasons (on both occasions) demonstrate that it was alive to the relevant issues – i.e., the applicant’s non-appearance and the statutory framework that could be applied in those circumstances.  There is nothing to suggest that the second respondent misdirected itself as to the law or made any errors of fact that might lead to the conclusion that jurisdictional error was present.  As the first respondent submits, under s.426A of the Act, if a person is invited under s.425 to appear before the second respondent and does not appear at the scheduled time and place, the second respondent may, by s.426(1A)(b), dismiss the application without any further consideration of the application or the information before it.  I accept that the second respondent’s invitation to hearing dated 20 December, 2017 complied with the relevant legislative requirements in that it:

    a)gave notice of the day, time and place of the hearing;

    b)was sent by email to the last email address provided in connection with the review;

    c)complied with the prescribed notice period; and

    d)contained a statement to the effect of s.426A of the Act.

21. The evidence shows that the applicant clearly received that invitation because he responded to it by seeking a postponement of the hearing.  Although his request for a postponement suggests that the hearing was to be held on 1 January, 2019 and not 1 February, 2019, the applicant does not attempt to make anything of that anomaly on this application.  It is likely in those circumstances that the incorrect reference was nothing more than an unintended error in the applicant’s email.

22. As the applicant did not appear at the hearing on 1 February, 2018 the second respondent’s power under s.426A(1A)(b) to dismiss the application without further consideration of the information before it was engaged. No occasion arose to consider the applicant’s claims on their merits.

23. Further, there was nothing unreasonable about the second respondent’s decision to proceed to dismiss the application without further consideration.  The confirmation of that decision was inevitable given that the applicant did not apply for reinstatement of his application for review before the second respondent.

Conclusion

1. Even taking the most benevolent view of the applicant’s proposed grounds of review they enjoy no prospect of success.  There is no other reason apparent from the material before me to conclude that either of the second respondent’s decisions taken on 2 February, 2019 and 20 February, 2019 are affected by jurisdiction error.  I am not satisfied that it is necessary in the interests of the administration of justice to grant the extension of time that the applicant seeks.

2. The application must be dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 5 June 2020.

Associate:

Date:  8 June 2020