EPF18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 315
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EPF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 315
File number(s): MLG 2668 of 2018 Judgment of: JUDGE GOODCHILD Date of judgment: 10 May 2023 Catchwords: MIGRATION - protection visa - decision of the Administrative Appeals Tribunal - application for extension of time - significant delay - unsatisfactory for delay - no prejudice - no arguable case of jurisdictional error - application dismissed Legislation: Migration Act 1958 (Cth) 36, 338, 347, 411, 414, 422B, 425, 425A, 426A, 426B, 441A, 441C, 477
Migration Regulations 1994 (Cth)
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Englezos v Secretary, Department of Social Services [2023] FCA 31
Gallo v Dawson (1990) 93 ALR 479
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268
MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901
SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 109 Date of hearing: 26 April 2023 Place: Sydney Applicant: In Person Solicitor for the Respondents: Mr A Slevison of Australian Government Solicitor ORDERS
MLG 2668 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EPF18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
10 May 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
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 GOODCHILD:
INTRODUCTION AND BACKGROUND
The applicant in these proceedings (“the applicant”) is a 26-year-old citizen of Malaysia. He arrived in Australia on 16 February 2016 and applied for a protection visa on 8 March 2016 (Court Book (“CB”) 56).
On 21 April 2016 a delegate of the then Minister for Immigration made a decision refusing to grant the applicant the protection visa (“the delegate’s decision”) (CB 53).
On 4 May 2016, the applicant lodged an application with the Administrative Appeals Tribunal (“the Tribunal”) for a merits review of the delegate’s decision (CB 75). In that review application, the applicant provided an email address for service of documents (“the nominated email address”), and also provided a telephone number (CB 76).
On 9 May 2016, the Tribunal sent an email to the applicant’s nominated email address acknowledging receipt of his review application. In that correspondence, the Tribunal instructed the applicant to immediately update the Tribunal of any change to his contact details (CB 78).
On 5 July 2017, the Tribunal emailed the applicant’s nominated email address, inviting him to attend a hearing on 26 July 2017 at 9.30 am (VIC time). The applicant was informed by the Tribunal that at the hearing he would have the opportunity to give evidence and present arguments relating to the issues in his case (CB 81). The applicant did not respond to the hearing invitation.
On 19 and 25 July 2017, the Tribunal sent an SMS to the applicant’s telephone number reminding him of the date and time of the hearing. According to Tribunal records, the delivery of both text messages failed (CB 104).
At the Tribunal hearing on 26 July 2017, there was no appearance by or on behalf of the applicant. At 10.00 am that same morning, the Tribunal called the applicant without success (CB 83).
In the circumstances of the applicant’s failure to attend the Tribunal hearing on 26 July 2017, the Tribunal made a decision (“the Non-Appearance Decision”) to dismiss the applicant’s review application pursuant to s 426(1A)(b) of the Migration Act 1958 (Cth) (“the Act”). On the same day, a copy of the Non-Appearance Decision was emailed to the applicant at his nominated email address. By correspondence attached to the email, the applicant was also informed that he could make an application to reinstate his review application by 9 August 2017 (CB 87).
The applicant did not apply for reinstatement and otherwise did not contact the Tribunal. As such, on 14 August 2017 the Tribunal made a decision to confirm the Non-Appearance Decision (“the Confirmation Decision”) (CB 90 to 92) which, by virtue of s 426A(1F) of the Act, meant the delegate’s decision was taken to be affirmed. The applicant’s review proceedings before the Tribunal were thereafter finalised.
Contact with the Tribunal a year later
On 14 August 2018, the applicant telephoned the Tribunal seeking an update about the progress of his matter. The applicant informed staff at the Tribunal that he had “lost” the password to his nominated email address and could not therefore access that email inbox (CB 105). The Tribunal officer informed the applicant that his review application was finalised on 26 July 2017. The applicant requested that he be provided a copy of his case and was told by the Tribunal officer to put his request in writing, in an email addressed to the Tribunal. That same day, the applicant sent an email to the Tribunal requesting a copy of the Decision Record (CB 93).
On 21 August 2018, the applicant telephoned the Tribunal two times requesting that the Decision Record be sent to a new email address he was now using (“the new email address”). He reiterated that he no longer had access to his previously nominated email address, having “forgotten” the password for it, and provided the Tribunal officer with his new email address.
In the evening of 21 August 2018, the Tribunal sent an email to the applicant’s new email address advising him that the Tribunal could not release the requested documents without a Freedom of Information Request (CB 95). The applicant submitted the relevant Freedom of Information Request form on 21 August 2018 (CB 97) and two days later was granted access to the Decision Record and sent a copy of same to his new email address (CB 102).
Further copies of the Decision Record were sent to applicant’s new email address on 30 August 2018 after the applicant rang the Tribunal stating that he did not receive the earlier sent documents in his inbox (CB 103).
The current proceedings
On 5 September 2018, the applicant filed in this Court his application for judicial review of the Tribunal’s Confirmation Decision. Although the applicant only refers to the Confirmation Decision (and not the Non-Appearance Decision) in his judicial review application, as both the Non-Appearance and Confirmation Decisions are necessarily linked, the applicant can be taken as seeking judicial review of both decisions.
Pursuant to s 477(1) of the Act, the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. The applicant is 371 days out-of-time in relation to the Non-Appearance Decision (dated 26 July 2017), and 352 days out-of-time with respect to the Confirmation Decision (dated 14 August 2017).
Accordingly, the applicant requires an extension of time pursuant to s 477(2) of the Act to pursue his judicial review proceedings in this Court.
On 26 April 2023, the applicant’s extension of time application proceeded to an electronic hearing before me. At the hearing the applicant appeared unrepresented. An interpreter in the Malay language was present to assist the applicant. The first respondent in these proceedings (“the first respondent”) attended the hearing represented by a legal representative.
This Judgment addresses whether an extension of time should be granted.
For the reasons that follow, the Court concludes that an extension of time should not be granted.
LEGAL PRINCIPLES - EXTENSION OF TIME
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period within which a substantive judicial review application can be filed, if:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court considers that it is in the interests of the administration of justice to do so.
In the present case, the applicant filed his Originating Application on 5 September 2018 seeking an extension of time, and provided therein the following “grounds” for why he believes an extension should be granted:
1.I am currently working as a casual laborer in Robinvale.
2.I applied for a protection visa on or around 2016, my friend provided in his contact details in the said application for protection.
3.The Administrative Appeals Tribunal refused my application because i did not attend at the Administrative Appeals Tribunal for hearing..
4.I am self-represented and not conversant in the English language.
5.I was not conversant in English i suggested my friend to provide his email contact ID so he can read and advise me about the progress of the matter.
6.My friend who was also a casual laborer then went elsewhere to work and we did not keep in touch.
7.I didn’t know anything about the hearing at the AAT because the email id was my friend’s and not mine. My friend didn’t inform me about the hearing at the AAT. I obviously didn’t know about the letter which was sent either by the Tribunal or the Department of Immigration.
8.I did not receive any letter or email from AAT notifying me of the decision dated 14 August 2017.
9.I carried on working at Robinvale and had an opportunity to work elsewhere for better pay but the employer told he i must have work right. I them asked the potential employer to check on VEVO my visa status. It was only then i realized that i had no visa.
10.I understand there is a delay in making this application for review but I genuinely do not have any knowledge of the appeals processes and was self-represented throughout.
11.I didn’t know of my right to appeal.
12.My bridging visa has expired.
13.I didn’t receive any guidance from anyone or obtained any about information to attend at a community centers for assistance.
14.I have a good case and need another opportunity to present my case.
15.There is no prejudice to the Respondents if my application is allowed.
16.All i am asking is an opportunity to present my case. I believe there are merits in the appeal before the court.
17.If an extension of time is not granted i have to leave Australia immediately and cannot exercise my legal right to appeal. There is no prejudice to the Respondents whatsoever but i will be severely prejudice in that i cannot appeal and will have to depart Australia. I will be severely prejudice because i have a right to be heard and i have not exhausted all my right to appeal.
(As per original)
Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
While the factors which may be considered when determining whether to grant an extension of time are not limited, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen[1] (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2]) the most common factors considered by the Court in matters of this sort include:
(a)whether there has been a reasonable and adequate explanation for the delay (explanation);
(b)whether there is any prejudice to the Minister (prejudice); and
(c)whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time (merits of substantive application).
[1] (1984) 3 FCR 344.
[2] (2022) 403 ALR 604 (“Tu’uta Katoa”) at [12].
When considering the merits of the proposed substantive application as a factor in assessing whether to grant an extension of time, the Court will do so at a “reasonably impressionistic level”.[3] Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted.[4]
[3] MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585.
[4] MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158.
In Tu’uta Katoa, at [19], the Court endorsed the third principle set out in SZRIQ.[5] The Court said in relation to a substantively similar provision in s 477A(2) of the Act, that the provision entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighted and assessed, including by reference to the merits of the proposed application. The Court held (at [19]-[20]) that the merits of the application for judicial review could be assessed beyond an “impressionistic” basis.
[5] SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [47].
To assist the applicant who, as noted, was unrepresented at the hearing on 26 April 2023, the Court explained to him that the possible categories of jurisdictional error for migration decisions of this sort, most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question;[6]
(b)where the decision-maker ignores relevant material;[7]
(c)where the decision-maker relies on irrelevant material;[8]
(d)where the decision-maker fails to follow mandatory procedures;[9]
(e)where the decision-maker shows actual or apprehended bias;[10] and
(f)where the decision is illogical, irrational or unreasonable.[11]
[6] Craig v State of South Australia (1995) 184 CLR 163 at 198.
[7] Ibid.
[8] Ibid.
[9] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208].
[10] SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2].
[11] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that it is not the role of this Court to grant the applicant the visa that he seeks. Rather, part of the role of the Court is to determine what the Tribunal did in its decision-making.
CONSIDERATION
The materials before the Court include:
·the applicant’s Originating Application filed 5 September 2018;
·the applicant’s Affidavit filed in support of his Originating Application dated 5 September 2018;
·the first respondent’s Response filed 9 November 2018;
·the Court Book filed by the first respondent on 17 April 2020;
·the Supplementary Court Book (“SCB”) filed by the first respondent on 12 April 2023;
·the first respondent’s written Outline of Submissions filed 12 April 2023;
·the first respondent’s List of Authorities filed 12 April 2023; and
·two Affidavits of Service filed by solicitors for the first respondent dated 18 April 2023.
The Court confirmed with the applicant that he had received the written Outline of Submissions of the first respondent, which the first respondent deposed had been served on him on 12 April 2023, and both the Court Book and Supplementary Court Book. The matter was stood down for a period of time to allow the Malay interpreter to interpret for the applicant the written Outline of Submissions of the first respondent.
When the matter resumed, the applicant was asked if there was anything further he wished to say in respect of his application for an extension of time. The applicant’s responses, where relevant, will be included in my consideration of the factors below. The Court was satisfied that the applicant fully understood the proceedings and was able to properly participate in and follow the proceedings.
Length of delay
The Court notes that an extension of time is not granted as a right.[12] Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule.[13]
[12] Gallo v Dawson (1990) 93 ALR 479 at [2] per McHugh J.
[13] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
The delays in this matter are 371 days out-of-time in relation to the Non-Appearance Decision and 352 days out-of-time in relation to the Confirmation Decision.
The delay here is significant and weighs against the granting of an extension of time.
Prejudice
It was conceded by the first respondent’s solicitor in written submissions filed in this Court on 12 April 2023 that there would be limited prejudice to the first respondent if the extension was granted.
This weighs in favour of granting the extension of time.
Explanation for delay
The longer the delay in question, the more satisfactory the explanation for that delay needs to be.[14]
[14] Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
The “grounds” for an extension of time put forward by the applicant in his judicial review application attempt to proffer some explanation for delay. The applicant states, for example, that the email address he nominated on his review application belonged to a friend of his and that, because this friend went elsewhere to work and they did not keep in touch, he was not informed about the Tribunal hearing or notified about the Non-Appearance Decision. The applicant further states in his application that he understands there was a delay in making the application for judicial review, but that he “genuinely [does] not have any knowledge of the appeals processes and was self-represented throughout”. He added that he did not know of his right to appeal and did not receive “any guidance from anyone”.
Other than the above matters raised in his judicial review application, the applicant does not provide any evidence to justify the delay and does not otherwise elaborate in his supporting Affidavit on the reasons he claims the extension of time should be granted. In his supporting Affidavit, the applicant simply refers to the Confirmation Decision made by the Tribunal, which forms an annexure to the Affidavit document.
At the hearing on 26 April 2023, I provided the applicant a further opportunity to explain the delay in filing for judicial review in this Court. When asked whether there was anything further he would like to tell the Court in this regard, the applicant said “no”.
Applicants seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. As was recently discussed by Collier J in Englezos:[15]
As a general position, I note that an inability to obtain legal advice does not, in itself, form an adequate explanation for delay. Whilst the Court may have sympathy for a litigant in person, a failure to abide by any stipulated timeframe in the filing of an appeal by virtue of a professed ignorance of the relevant rules is not an adequate reason for delay: BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40]; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]. Although a person wishing to bring an action or appeal is entitled to seek assistance from legal practitioners, it is ultimately the proposed applicant’s case and responsibility to ensure compliance with the relevant requirements; see for example SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]…
Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not “mere aspirational guidelines” and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40].
(Emphasis added)
[15] Englezos v Secretary, Department of Social Services [2023] FCA 31.
The Court does not consider that the explanations provided by the applicant are satisfactory. This weighs against granting an extension of time.
Merit
The most critical factor for consideration when determining whether an application for an extension of time ought to be granted is whether the proposed application for judicial review has any “arguable prospect of success” or merit.
In this regard, the Court refers to the High Court’s decision in Tu’uta Katoa as follows:
17.… it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”[16]. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed[17], that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.[18]
[16] CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at 452 [19].
[17] MZABPv Minister for Immigration and Border Protection (2015) 242 FCR 585 at 597 [58].
[18] Federal Court of Australia Act1976 (Cth), s 24(1)(a).
The application for judicial review filed by the applicant on 5 September 2018 includes the following grounds of review:
1.The tribunal failed to accord to the Applicants procedural fairness and natural justice.
Particulars
a.The Tribunals decision to conclude no jurisdiction was arbitrarily and unreasonable.
b.The Tribunal’s refusal to review the delegate’s decision was unreasonable applying the case of MIAC v Xijuan Li and Anor [2013] HCA 18.
c. The Tribunal failed to accord the applicant procedural fairness.
2.The Decision of the Tribunal is affected by jurisdictional error as it failed to comply with Section 414 of the Migration Act 1958 (the Act).
Particulars
a.The delegate (reviewer) was under a duty to accord the applicants procedural fairness when determining whether to recommend the applicants are or are not entitled to protection.
b.The duty to accord procedural fairness required the delegate to notify the applicants that one of the issues the delegate intended to consider was whether the applicants met the criterion specified in s. 36(2) (aa) if the Act.
c.The delegate failed to properly notify the applicants whether the application will be considered as a refugee under the 1951 Refugees Convention or under the complementary protection.
3.That the Tribunal erred in law by not correctly applying the provisions of Section 347 (1)(b) of the Migration Act 1958 read with r4.10 of the Migration Regulations 1994
Particulars
a.The Applicant was not properly notified of the first instance decision of the delegate in accordance with the requirements of subsection 66(2) of the Migration Act 1958
b.The delegate’s decision’s was MRT-reviewable decisions pursuant to section 347 of the Migration Act 1958
c.The Tribunal erred in not reviewing the application by misconstruing the provisions of section 347 of the Act and coming to an erroneous decision.
d. The Tribunal had jurisdiction to deal with the matter
(As per original)
Although the applicant attempts to particularise a number of grounds of judicial review in his application, the bases for some of these grounds appear on their face to be misconstrued, while other grounds argued fall outside the ambit of the Court’s review jurisdiction.
On 17 February 2023, orders were made for the applicant to file and serve any amended application and any affidavit containing additional evidence to be relied upon in his case. He did not do so. An order was also made for the applicant to file and serve written submissions by a particular date, however none were filed.
On a review of the applicant’s application and (limited) affidavit evidence, and having regard to the nature of the decisions under review, I consider that the issues of jurisdictional error raised by the applicant relate to the following matters which have been usefully summarised in the first respondent’s written Outline of Submissions, and which I adapt here:
(a)whether the Tribunal failed to afford the applicant procedural fairness;
(b)whether the Tribunal made an erroneous determination regarding its jurisdiction; and
(c)whether the Tribunal acted unreasonably in exercising both its discretion to dismiss the applicant’s matter for non-appearance, and later confirm that dismissal decision.
At the hearing on 26 April 2023, I gave the applicant an opportunity to elaborate on the substantive “grounds of review” identified in his judicial review application, and to outline any other concerns he might have in relation to the Tribunal’s decisions.
When asked for further comments in relation to his claim that the Tribunal was procedurally unfair in its decision-making, the applicant appeared to resile from such claim, stating that he “[does not] know anything about the Tribunal”. When asked whether it was his case that it was “unfair” that the Tribunal had made decisions in his absence, the applicant replied (as interpreted) “no, I didn’t say anything about what the Tribunal did with its decision, whether it was fair or unfair”.
The applicant was once more invited to make oral submissions about what it is he claims the Tribunal did. He told the Court that there was nothing further he wished to say.
While nothing the applicant said to me was relevant in advancing the prospects of success of his substantive application, in its duty to assist self-represented litigants, the Court will consider whether any of the matters contained in his judicial review application (summarised at [48] above) give rise to an arguable case that the Tribunal fell into jurisdictional error.
For completeness, I first set out the Tribunal’s decisions.
The Tribunal’s decisions
The Non-Appearance Decision
The Non-Appearance Decision dated 26 July 2017 provides (CB 88):
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 26 July 2017 at 9:30am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
2.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), and that the invitation has not been returned to sender. No reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
(Emphasis in original)
The Confirmation Decision
The Confirmation Decision dated 14 August 2017 provides (CB 92):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 April 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 26 July 2017 the Tribunal dismissed the application under s.426A(1A)(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 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.
(As per original)
Whether the Tribunal failed to afford the applicant procedural fairness (Ground 1 and paragraphs 1c, 2a and 2b)
The applicant asserts by his first proposed ground, and by the particulars given at paragraphs 1c, 2a, and 2b of his application, that the Tribunal denied him procedural fairness.
Division 4 of Part 7 of the Act comprises an exhaustive statement of the requirements of the natural justice hearing rule that the Tribunal must comply with in relation to the matters that they deal with.[19]
[19] s 422B(1) of the Act.
Of those various provisions prescribing the Tribunal’s procedural fairness obligations, the two most relevant in the present case are ss 425 and 426B, in circumstances where the applicant failed to appear at the Tribunal hearing on 26 July 2017 which resulted in the Tribunal dismissing the applicant’s application for review pursuant to s 426A(1A)(b) of the Act.
The obligation to properly invite the applicant to a Tribunal hearing - s 425
Pursuant to s 425 of the Act, the Tribunal is required to invite the applicant to attend a hearing before it. That section provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The necessary requirements for a Notice of invitation to appear is set out in s 425A of the Act, which relevantly provides:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
On 5 July 2017, an email was sent from the Tribunal to the email address provided by the applicant in his review application (CB 80). Attached to that email was an invitation from the Tribunal to the applicant to attend a hearing at 9.30 am (VIC time) on 26 July 2017, at a specified address which was the Tribunal’s Melbourne Registry (CB 81 to 82).
Further in the correspondence sent from the Tribunal notifying the applicant of the hearing, the following paragraphs are included (CB 82):
If you are not able to attend the hearing, you need to advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
A leaflet containing information about hearings, dismissals and the rights of applicants, was also attached to the Tribunal’s email to the applicant dated 5 July 2017 (CB 82; SCB 106 to 109).
Having regard to the above matters, I am satisfied that the Tribunal complied with the requirements set out in s 425A of the Act. In particular, the invitation to attend the hearing:
(a)was addressed to the applicant (CB 80);
(b)clearly indicated the date, time and means by which the applicant could attend the Tribunal hearing (CB 81);
(c)was sent to the applicant’s email address provided by him in his review application (CB 80 to 81), noting that email notification is a method approved by s 441A(5)(b) of the Act;
(d)was provided to the applicant 21 days prior to the scheduled hearing, being a time-frame exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”); and
(e)contained information describing the effect of s 426A of the Act and the particular consequences of a failure to attend the hearing (CB 82).
It should be further noted that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter – where the invitation was sent via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case, at the end of the day it was transmitted, being 5 July 2017), regardless of whether the document was actually received.[20]
[20] SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271 at [36].
As was also explained in BHG22 (citing Sun[21] and Mohammed[22]), where an invitation to attend a hearing has been sent and complies with the requirements set out in s 425A of the Act, there is no obligation on the Tribunal to consider other ways in which an applicant can be notified of the scheduled hearing. This is further reinforced by amendments to the wording of s 425 of the Act, which previously required that the Tribunal provide an applicant with an “opportunity” to appear. The current provision only requires that the Tribunal “invite” the applicant to appear.
[21] Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901.
[22]Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268.
I am satisfied that the applicant in this matter was properly invited to attend the hearing.
No arguable case of error arises in this regard.
The obligation to notify the applicant of the Non-Appearance Decision - s 426B
If the Tribunal makes a decision to dismiss an applicant’s review application by reason of that applicant’s failure to attend the scheduled hearing, in accordance with s 426B(2) of the Act, it is procedurally fair that the Tribunal make a written statement that sets out the decision[23] and the reasons for that decision.[24]
[23] s 426B(2)(a) of the Act.
[24] s 426B(2)(b) of the Act.
Sections 426B(5) and 426B(6) of the Act also obligate the Tribunal to notify the applicant of the non-appearance decision in a specified way. Relevantly:
(5)The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
Here, the Tribunal did as it was required to under ss 426B(2), (5) and (6) of the Act.
The Tribunal prepared a written statement of its Non-Appearance Decision dated 26 July 2017 which clearly indicated both its decision to dismiss the applicant’s review proceedings and the reasons for arriving at such decision (CB 88). A copy of the Decision Record was sent to the applicant on the same day as the decision being made, and thus the applicant was notified of the dismissal well within the required 14-day period.
As the Decision Record was sent via email to the applicant’s nominated email address, the Tribunal notified the applicant of its Non-Appearance Decision using a method specified in s 441A of the Act. It can be seen from correspondence sent from the Tribunal to the applicant on 26 July 2017 that included in that email notification was a statement informing the applicant of the option to reinstate his review application (CB 87). Accompanying the Tribunal’s email was an information sheet containing information about “dismissal of applications” and the necessary steps to take to have an application reinstated (SCB 110 to 111).
As correctly submitted by the first respondent in both oral and written submissions, in complying with the requirements under s 426B of the Act, the Tribunal afforded the applicant procedural fairness.
Accordingly, no arguable case of jurisdictional error arises in this regard.
Whether the Tribunal made an erroneous determination regarding its jurisdiction and failed to discharge its duty to conduct a review (Grounds 2 and 3, and paragraphs 1a, 3b, 3c and 3d)
By ground 3, and by the particulars given at paragraphs 1a, 3b, 3c and 3d of his judicial review application, the applicant argues that the Tribunal was incorrect to conclude that it had “no” jurisdiction to review the delegate’s decision. It is suggested by the applicant in those particulars that the Tribunal’s jurisdiction to conduct a merits review of the delegate’s decision arises from s 347 of the Act, by reason of the delegate’s decision being a “MRT-reviewable decision” under Part 5 of the Act.
It is further argued by the applicant that in not conducting the merits review as sought, the Tribunal misconstrued s 347 of the Act and r 4.10 of the Regulations.
Neither claim made by the applicant in this regard can succeed given they are based on what is clearly a misconception of the relevant law.
It is trite to first observe that a decision made by a delegate to refuse to grant a protection visa is a “Part 7-reviewable decision” as defined in s 411(1)(c) of the Act. It is made clear by s 338(1)(b) of the Act, that a decision is classified a “Part 5-reviewable decision” (to which the requirements in s 347 would apply), unless that decision is already captured by the definition of Part 7-reviewable decisions found in s 411 of the Act.
Here, the delegate’s decision for which the applicant sought a review was a decision to refuse him a protection visa. As such, the decision is a Part 7-reviewable decision and not one the Tribunal can review as a Part 5-reviewable decision.
It follows that the Tribunal’s jurisdiction to conduct a merits review of the delegate’s decision arises from s 414 of the Act found under Part 7, and not Part 5 of the Act as suggested by the applicant.
Importantly, s 347(1)(b) of the Act and the regulation to which the applicant refers in his judicial review application, do not, in any event, provide for matters relating to the Tribunal’s review function. Instead, those specific provisions concern the prescribed period in which an application for a review of a Part 5-reveiewable decision, must be given to the Tribunal. This can hardly be relevant where, as submitted by the first respondent, there has been no suggestion in this case that the applicant did not lodge his merits review application within the required time.
Addressing now whether the Tribunal failed to discharge its duty to review the delegate’s decision pursuant to s 414 of the Act (the applicant’s ground 2), it is to be remembered that, ordinarily, in the context of an application for a protection visa, the Tribunal is obliged to consider the matters addressed by ss 36(2)(a) and 36(2)(aa) of the Act. This, in turn, requires the consideration of whether the applicant is a refugee and has a well-founded fear of persecution.
However, when an applicant fails to appear before the Tribunal on the day on which they are scheduled to appear, pursuant s 426(1A) of the Act, the Tribunal has the discretion to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it”[25], or, “dismiss the application without any further consideration of the application or information before the Tribunal”[26].
[25] s 426A(1A)(a).
[26] s 426B(1A)(b).
It is clear from the Non-Appearance Decision that the Tribunal did not dismiss the applicant’s review application on the basis that the Tribunal concluded it had no jurisdiction to review the delegate’s decision.
Rather, the Tribunal, satisfied of its jurisdiction under s 414 of the Act, decided that it would exercise its discretion to dismiss the applicant’s review application without further consideration of that application or the information before the Tribunal, as a result of the applicant’s non-appearance (CB 88 at [3]).
I accept the first respondent’s submission that the applicant’s complaint that the Tribunal erroneously concluded it had no jurisdiction cannot succeed in light of the fact that the Tribunal had also invited the applicant to appear before it at a hearing. By that invitation, the Tribunal put the applicant on notice that it was prepared to hear the applicant’s evidence and arguments relating to the delegate’s decision under review.
No arguable case of jurisdictional error is established.
Whether the Tribunal acted unreasonably in exercising both its discretion to dismiss the applicant’s matter for non-appearance, and later confirm that dismissal decision (paragraph 1b)
In his substantive application at paragraph 1b, the applicant refers to the High Court case of Li[27] to argue that the Tribunal’s refusal to review the delegate’s decision was “unreasonable”. In Li, the High Court held at [76] that “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.
[27] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”).
In the circumstances of this matter, I am not satisfied that the Tribunal was unreasonable with respect to both the Non-Appearance and Confirmation Decision. I consider that neither decision lacks an evident and intelligible justification for the following reasons.
Dismissing the applicant’s review application
As outlined by this Court in BHG22[28] (citing ACN22[29]), before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (under s 425 of the Act) to appear before it.
[28] BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176 (“BHG22”).
[29] ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744.
Further, ss 425 and 425A of the Act are to be read together.[30] That is, if s 425A of the Act has not been complied with, a valid notice of invitation has not been sent and the Tribunal’s powers under s 426A of the Act will not be enlivened.
[30] Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39].
As set out above, the Court is satisfied that the applicant in this matter was properly invited to appear at the Tribunal hearing as required by ss 425 and 425A of the Act.
Because the applicant had been validly invited to attend a hearing, but failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section provides:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
The applicant did not appear at the hearing on 26 July 2017. He does not dispute this.
In the circumstances of the applicant’s failure to appear, two options were available to the Tribunal. It could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or it could dismiss the applicant’s review application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
The Tribunal, in this matter, chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act). This was open to the Tribunal, and the Tribunal was not unreasonable in proceeding in this way, given:
(a)the hearing invitation was sent to the applicant via email sent to his nominated email address and there was no evidence before the Tribunal to suggest that the applicant had not received that invitation (for example, there was no email failure notice received);
(b)no further material had been provided to the Tribunal by the applicant in support of his review application;
(c)an SMS reminder of the hearing was sent to the applicant’s nominated mobile number on 19 and 25 July 2017. Although the delivery of both SMS messages failed (CB 104), this has no bearing on whether the Tribunal properly invited the applicant to attend the hearing, given the principles set out in BHG22 discussed above; and
(d)the applicant did not appear at the Tribunal hearing at the scheduled time of 9.30 am (VIC time) on 26 July 2017 (CB 83).
No arguable case of jurisdictional error arises in relation to the Non-Appearance Decision.
Confirming the decision to dismiss the review application
So far as the Tribunal’s Confirmation Decision is concerned, the Court notes that applicant was notified (by email) of the Non-Appearance Decision on 26 July 2017 (CB 86).
The Court notes that when the applicant was advised that his application had been dismissed, he was also advised that he could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (that is, by 9 August 2017). Relevantly, the letter addressed to the applicant provided as follows (CB 87):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 9 August 2017. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
This letter complied with the requirements of s 426B(6) of the Act.
The applicant did not seek reinstatement prior to the Confirmation Decision being made. Section 426A(1E) of the Act provides:
If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
In circumstances where no application for reinstatement was made by the applicant, the Tribunal was legislatively required to confirm the decision to dismiss the applicant’s application.
The Tribunal did so and provided the applicant with a written statement to that effect, in the form of the Confirmation Decision, on 14 August 2017 (CB 89 to 92).
No arguable case of error arises in relation to the Tribunal’s Confirmation Decision.
Conclusion regarding merits of the substantive application
For all of the foregoing reasons, I find that the substantive application is without merit, and has no prospects of success.
I further note that with respect to paragraphs 2a and 2c of the applicant’s judicial review application, which appear to refer to parts of the delegate’s refusal decision, and which complain about the delegate failing to notify the applicant about the delegate’s intended consideration of the protection visa criteria, this Court has no jurisdiction to review the delegate’s decision or conduct pursuant to s 476(2)(a) of the Act.
Even if such complaints were intended to be directed at the Tribunal’s conduct, by reason of the applicant’s non-appearance at the hearing, the Tribunal’s power under s 426A(1A)(b) of the Act (to dismiss the review application without considering it further), was enlivened. In other words, the Tribunal was not required to form a view on whether the applicant satisfied any of the protection visa criteria in s 36 of the Act, given the discretion conferred upon it in s 426A(1A)(b) of the Act. The Court reiterates here that, for the reasons given, the Tribunal’s exercise of its discretion under s 426A(1A)(b) was not unreasonable.
CONCLUSION
The lengthy delay in filing, the lack of both a satisfactory explanation for that delay and an arguable case of jurisdictional error on the part of the Tribunal, are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time is, accordingly, refused.
I certify that the preceding one-hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 10 May 2023
0
35
0