ELQ20 v Minister for Immigration and Multicultural Affairs

Case •

[2025] FedCFamC2G 9

•

29 January 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ELQ20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 9

File number(s): MLG 3664 of 2020
Judgment of: JUDGE CORBETT
Date of judgment: 29 January 2025
Catchwords: MIGRATION – Protection (Class XA) (Subclass 866) visa – application for review of Registrar’s decision – application for extension of time to seek judicial review - whether adequate explanation for delay – no reasonable prospects of successfully prosecuting application – application dismissed.
Legislation:

Migration Act 1958 (Cth) ss 477(2), 477(1), 5H(1), 36(2)(a), 36(2)(aa), 426(1A)(b), 426A(1E), 425, 425A, 426B

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 256, 254, 256(1)(a)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 21.02, 21.02(2), 21.02(1), 21.04, 21.04(2), 13.13

Cases cited:

Allison v Murphy [2021] FCAFC 232

ELQ20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1132

Hunter Valley Development Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391

SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCA 28
Division: Division 2 General Federal Law
Number of paragraphs: 58
Date of last submission/s: 17 December 2024
Date of hearing: 17 December 2024
Place: Melbourne
Solicitor for the Applicant  The applicant appeared in person
Solicitor for the Respondents Mr D Brown, Australian Government Solicitor

ORDERS

MLG 2664 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

ELQ20

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CORBETT

DATE OF ORDER:

29 JANUARY 2025

THE COURT ORDERS THAT:

1.The application for review filed 6 December 2024 seeking to review the exercise of the Registrar’s power to summarily dismiss the proceeding be dismissed.

2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application for review fixed in the sum of $2,750.00.

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 CORBETT

  1. The applicant seeks to review the exercise of power of a Registrar of this Court made on 4 November 2024. The Registrar ordered that the applicant’s application for an extension of time to commence an application for judicial review be summarily dismissed with costs.

  2. The applicant sought an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) to seek judicial review of a decision of the second respondent (Tribunal) made on 18 December 2017. The Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).

  3. The application for judicial review of the Tribunal’s decision was filed with this Court on 13 October 2020.

  4. The time within which the applicant was required to make the application for judicial review to this Court is within 35 days of the Tribunal’s decision (s 477(1) of the Act). The application for judicial review was made two years and nine months after the Tribunal’s decision.

  5. In an Amended Response to the application for judicial review filed 16 September 2024, the Minister applied for an order for summary dismissal of the application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).

  6. On 4 November 2024, a Registrar of this Court summarily dismissed the application for judicial review pursuant to r 13.13(a) of the Rules and found that the application had no reasonable prospects of success.

  7. On 6 December 2024, the applicant sought review of the Registrar’s decision (Review Application). The time within which to make an application for review of a Registrar’s decision is fixed by r 21.02 of the Rules. An application for review must be made within seven days of the Registrar’s decision. Here, the Review Application was made 25 days late, therefore, the applicant is required to apply to the Court for and obtain an order extending time under r 21.02(2) of the Rules.

  8. For the reasons that follow, an extension of time is refused, and the Review Application is dismissed.

  9. References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 17 December 2024, marked exhibit “R2”.

    BACKGROUND

  10. The applicant is a Malay national. The applicant first arrived in Australia on 17 August 2016 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 72).

  11. On 7 December 2016, the applicant applied for the visa (CB 72).

  12. On 10 April 2017, a delegate of the Minister refused to grant the visa (CB 72-85). The delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act and therefore was not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) and 36(2)(aa) of the Act. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there was a real risk he will suffer significant harm as defined in s 36(2)(a) of the Act. The delegate also found that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act (CB 80).

  13. On 27 April 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 86-7).

  14. On 22 September 2017, the Tribunal invited the applicant to attend a hearing scheduled for 30 November 2017 to give evidence and present arguments (CB 92-7). On 23 November 2017 and 29 November 2017, the Tribunal sent the applicant SMS reminders about the hearing (CB 111).

  15. The hearing was held on 30 November 2017, however, the applicant did not appear (CB 98). The Tribunal exercised its discretion to dismiss the application for non-appearance pursuant to s 426(1A)(b) of the Act (CB 104). The Tribunal notified the applicant of its decision the following day, 1 December 2017 (CB 102).

  16. The applicant did not seek reinstatement of his application within the 14-day period provided for under s 426A(1E) of the Act (CB 101). On 18 December 2017, the Tribunal confirmed its decision to dismiss the proceeding pursuant to s 426A(1E) of the Act (CB 108-10) (Decision).

  17. On 15 August 2021, the applicant applied again to the Tribunal for review of the delegate’s decision (CB 11).

  18. On 17 August 2021, the Tribunal invited the applicant to comment on the validity of the second review application (CB 119). The applicant responded on the same day saying that he hoped his application was not too late (CB 122).

  19. On 13 September 2021, the Tribunal decided that it did not have jurisdiction to consider the second review application (CB 124–7).

  20. On 5 October 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision on the second application (CB 11). That application was discontinued by the applicant on 1 November 2024.

    PROCEEDINGS IN THIS COURT

    Application for Judicial Review

  21. On 13 October 2020, the applicant filed an application in this Court for an extension of time and an application for judicial review of the Decision under s 477(2) of the Act (CB 1-7). The application set out the following grounds for an extension of time (CB 3-4) (verbatim):

    (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. BUT IN MY MATTER TRIBUNAL DID NOT MUCH 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 s5H(2) TO DEFINE s5H(1) OF THE ACT AND TO PROVIDE THE EVIDENCES FOR MY CLAIM AND PRESENT MY ARGUMENTS TO VALID MY APPLICATION FOR PROTECTION VISA WITH A HEARING AFTER A DIRECTION WHICH WHAT I ATTENDED THAT DAY.   

    (6) THEREFORE, THE DECISION MADE IS NOT FAIR TO ME BECAUSE I DID’NT GET THE RIGHTS TO PRESENT MY ARGUMENTS AND PROVIDE EVIDENCES TO PROVE OF MY CLAIM ACCORDINGLY.   

    (7) I SEEK THE COURT FOR JUDICIAL REVIEW BEEN GIVEN AGAIN FOR MY CASE.  

  22. The application also set out the following grounds of review (CB 5) (verbatim):

    (1) THE ADMINISTRATIVE APPEALS TRIBUNAL MADE DECISION ON MY APPLICATION BY DISMISSING AND NOT TO GRANT ME A PROTECTION VISA ON 18 DECEMBER 2017 AFTER ME NOT ATTENDING THE HEARING TO PRESENT ARGUEMENTS AND EVIDENCES FOR MY CLAIMS.

    (2) I WAS TOTALLY UNAWARE ABOUT THE HEARING THAT THE RESULT WILL BE DECISION FINALISING MY APPLICATION WITH A REFUSAL BUT NOT GIVING A CHANCE REINSTATEMENT.I THAN CONTACTED THE TRIBUNAL 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 VISA OBLIGATION AND MEET THE CRITERIAN OF REFUGEE. ACCORDING TO MIGRATION ACT 1958 THE DEPATMENT OF IMMIGRATION HAS NOTIFY ME THAT I HAVE SUBMITTED 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

  23. The application was supported by an undated and unsworn affidavit of the applicant which set out the following grounds (CB 8-10) (verbatim):

    (3) I Did Not Have A Lawyer and Advice That I Could Appeal to Court Until I Obtained the Legal Advice.

    (4) The Decision Is Unfair to Me and I Am Seeking for Consent Order on My Matter with Tribunal for My Protection Claim Being Reinstated for Review Again.  

    (5) According to Migration Act 1958 – Sect 414, Tribunal Must Review the Case in Matter Accordingly 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.

  24. On 16 September 2024, the Minister filed an Amended Response to the application for an extension of time and sought summary dismissal pursuant to r 13.13(a) of the Rules.

  25. On 3 October 2024, the Registrar made orders which gave the applicant the opportunity to file any amended application for judicial review, written submissions and any further evidence in opposition to the summary dismissal application on or before 30 October 2024. The applicant did not file or serve any further material. The Registrar also made orders that the summary dismissal application be listed for a hearing before the Court on 1 November 2024.

  26. On 1 November 2024, the Registrar heard the Minister’s application for summary dismissal and on 4 November 2024, ordered that the application for an extension of time be dismissed with costs (see ELQ20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1132).

  27. On 6 December 2024, the applicant filed the Review Application. The Review Application was supported by an affidavit by the applicant affirmed 4 December 2024 that said (verbatim, without disclosing the identity of the applicant):

    1.I, [Name], [address]

    I am the Applicant of Protection Visa (Sub 866)

    2.THAT ON 30/11/2017, AAT AFFIRMS THE DHA’s DECISION NOT TO GRANT THE APPLICATION OF MY PROTECTION VISA(SUB 866) AAT DECISION.

    DHA DECISION AND SUPPORTING DOCUMENTS ATTTACHED WITH THIS APPLICATION.

  28. There were no documents annexed or attached to the affidavit.

  29. The time within which to seek review of the exercise of power by a Registrar is within seven days of the exercise of power (r 21.02(1) of the Rules). The Review Application was not filed with the Court within seven days of the Registrar’s orders.

  30. The Review Application was heard before this Court at Melbourne on 17 December 2024. The applicant appeared in person and was assisted by an interpreter fluent in the Malay and English languages. Mr Brown, solicitor, appeared for the Minister.

    APPLICANT’S SUBMISSIONS

  31. Noting that the applicant was not represented, the Court confirmed that the applicant received a copy of the Court Book prepared on behalf of the Minister and the Minister’s outline of written submissions. A further outline of submissions filed by the Minister and dated 16 December 2024 was interpreted to the applicant by the interpreter present in Court.

  32. The Court explained that the applicant must seek an extension of time within which to bring the Review Application because it too was out of time (r 21.02(2) of the Rules). The Court gave the applicant an opportunity to explain why the Review Application was filed late. The applicant said that he did not understand the content of the letter that was sent to him, and that he had difficulty obtaining legal advice. The applicant did not identify the “letter” to which he was referring or seek to rely on any affidavit explaining his position.

  33. The Court also asked the applicant why he was almost three years late in filing his application for judicial review and application for an extension of time. In response, the applicant said he was not an educated person, that he had difficulty understanding and he was unsure how to proceed and how to apply for review. He said that it was difficult to get assistance and had sought help from a friend who refused to help him.

  34. The Court asked the applicant to explain why the Tribunal decision was wrong and why he had an arguable case for review. The applicant replied, “because I don’t think it’s fair to me…I am a person who does not understand the law, and the position of the Tribunal is unfair towards me”. The applicant was otherwise unable to assist the Court or explain the substantial delay in commencing his application for judicial review.

    MINISTER’S SUBMISSIONS

  35. The solicitor for the Minister submitted that if an extension of time was granted pursuant to r 21.02(2) of the Rules, the Review Application is a matter to be heard de novo by this Court. The Minister’s primary submission was that there was no adequate explanation for the delay in bringing the application for judicial review and the application for an extension of time pursuant to s 477(2) of the Act had no reasonable prospects of success. The discretion to grant an extension of time to bring the Review Application should not be exercised because there was also no adequate explanation for the applicant’s delay and the merits of the Review Application (and the substantive application for an extension of time) were poor.

  36. The solicitor for the Minister otherwise sought to rely upon the outline of submissions dated 16 October 2024 provided to the Registrar which, among other things, submitted that the underlying application for judicial review had no reasonable prospects of success and in the absence of a credible explanation for the delay of two years and nine months, the application for an extension of time to bring the Review Application could not succeed.

  37. The Minister sought and obtained leave from the Court to tender the affidavit of Adam James Slevison, solicitor, affirmed 17 December 2024 and marked exhibit “R1”, which contained evidence of a statement made by the applicant at the hearing before the Registrar on 1 November 2024 to the following effect:

    9.At the summary dismissal hearing, the applicant told the Court that he received the email from the Tribunal dated 22 September 2017 inviting him to attend a hearing before it on 30 November 2017, but that he did not see it until after the Tribunal made its decision.

  38. The Minister invited the Court to step away from what was concluded by the Registrar and to now look at the application for an extension of time and substantive application for review on a de novo basis.

  39. It was submitted that the explanation for the delay of some two years and nine months to seek review of the Decision would need to be exceptional for the Court to exercise its discretion to grant the extension of time.

  40. Further, the applicant did in fact receive an invitation from the Tribunal to attend a hearing in November 2017, however, failed to notice it and therefore did not attend the hearing. This was the hearing that resulted in the dismissal of the applicant’s application to the Tribunal and therefore, there were simply no reasonable prospects of having the Decision set aside.

    REPLY

  41. The Court invited the applicant to make any further submissions. The applicant stated, “I don’t think it’s fair on me because I don’t know anything and it was difficult for me to obtain legal advice…with my current status, I am without a visa, perhaps if I had free legal advice it may have made a difference, but I didn’t know where to look for one”.

    CONSIDERATION

  42. Section 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) permits a party to a proceeding to apply to the Court for review of the exercise of a delegated power. The power to delegate functions of the Court to the Registrars is to be found in s 254 of the FCFCOA Act.

  43. The power to review under s 256(1)(a) of the FCFCOA Act is conditional upon the party making the application “within the time prescribed by the Rules of Court”. The time prescribed by r 21.02(1) of the Rules is seven days from the date of exercise of the power.

  44. The Court has a broad discretion to grant an extension of time pursuant to r 21.02(2) of the Rules. The Court may have regard to the length of and explanation for the delay, whether the granting of an extension of time will prejudice the other parties to the proceeding, and the merits of the underlying application (see Hunter Valley Development Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-9) (Hunter Valley)). These considerations provide guidance and consistency in the approach to such applications, however, are not exhaustive considerations that the Court must contemplate (see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [41]-[43]). The discretion to extend time in appropriate circumstances is unfettered by the Rules as is the discretion to extend time under s 477(2) of the Act (see Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCA 28 at [12]) (Tu’uta Katoa)).

  45. If an application is made within time or an extension of time is granted, a review of the exercise of power by a Registrar must proceed by way of a hearing de novo in accordance with r 21.04 of the Rules. This Court “is not concerned with the correctness of the decision of the Registrar or redressing any perceived error in that decision”, rather, it is required to consider the Minister’s dismissal application afresh (see Allison v Murphy [2021] FCAFC 232 per Besanko, Colvin and Downes JJ at [11]).

  46. In the review, the Court may receive as evidence any affidavit or exhibit tendered before the Registrar, receive further evidence with leave, and any transcript of the proceeding before the Registrar (r 21.04(2) of the Rules). It is not necessary for the applicant to establish any error on the part of the Registrar.

  1. Nevertheless, before the Court may undertake a review, the jurisdiction of the Court to undertake a review must be properly invoked. In the present matter, the Review Application was out of time, therefore, it was a prerequisite that the applicant make an application for an extension of time to seek review. Whilst the applicant did not make a formal application for an extension of time under the Rules, the Minister did not object to the Court proceeding on the basis that the application was implicit and a necessary prerequisite to jurisdiction to entertain the Review Application.

  2. Unfortunately, there was no evidence on oath or otherwise to explain the delay in bringing the Review Application and no persuasive evidence explaining the delay in commencing the substantive application for review of the Decision. At best, the applicant asserted in his affidavit filed in support of the application for an extension of time and judicial review (which was undated and not witnessed) and submitted that he did not understand his right to review and could not obtain legal advice in a timely way (CB 8-10). It is unclear if, and when, the applicant received legal advice and how the belated application came to be made.

  3. The applicant’s explanation for delay, both in relation to the Review Application and the extension of time application, is unsatisfactory. So too the explanation for failing to appear at the hearing before the Tribunal.   

  4. In SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, Foster J said at [38]:

    [38] In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated time frame, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay.

  5. The Court may have regard to a wide range of circumstances when exercising its discretion to extend time (see Hunter Valley). Such circumstances include properly explained delay, prejudice and the underlying merits of the application for judicial review assessed on an impressionistic basis (see Tu’uta Katoa). Here, the length of the delay of 25 days in bringing the Review Application and two years and nine months in seeking judicial review of the Decision was significant and was not properly explained by the applicant. Whilst the Minister may not suffer any prejudice by the delay, the absence of prejudice does not warrant the grant of an extension (see Hunter Valley at 348-9 and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]).

  6. Further, there is evidence that the applicant received notice of the Tribunal hearing date in accordance with ss 425 and 425A of the Act, but there is no satisfactory explanation of why the applicant was not aware of the Decision or did not seek reinstatement under s 426B of the Act.

  7. In all of the circumstances of this case, the Court is not persuaded to exercise the discretion to extend time within which to bring the Review Application because the merits of the substantive application are poor, if not hopeless. There are no reasonable prospects of success, and the Registrar was correct to summarily dismiss the application for judicial review because it had no reasonable prospects of success.

  8. An extension of time under r 21.02(2) of the Rules is refused and the Review Application is dismissed because it was not brought within the time required by r 21.02(1) of the Rules. Further, to the extent necessary to make any further findings, the Court also finds that the application for an extension of time under s 477(2) of the Act has no reasonable prospects of success and should be summarily dismissed under r 13.13 of the Rules.

    CONCLUSION

  9. The Review Application is dismissed and the orders made by the Registrar on 4 November 2024 stand.

    COSTS

  10. At the conclusion of the Minister’s submission, the solicitor for the Minister informed the Court that if the Review Application was dismissed, the Minister sought further costs fixed in the amount of $2,750.00. In the circumstances of this case, including the complexity of the issues and the further appearance at the hearing before this Court, that sum is fair and reasonable.

    ORDERS

  11. The application for review filed 6 December 2024 seeking to review the exercise of the Registrar’s power to summarily dismiss the proceeding be dismissed.

  12. The applicant pay the first respondent’s costs and disbursements of and incidental to the application for review fixed in the sum of $2,750.00.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

Associate:       

Dated:            29 January 2025

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