ERD20 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1355
•6 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ERD20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1355
File number(s): SYG 2479 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 6 December 2024 Catchwords: MIGRATION – extension of time – 165 days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) 477 Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Jess v Scott (1986) 12 FCR 187
MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
SZTRYvMinister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 919
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 28 November 2024 Place: Sydney Applicant: In Person Solicitor for the Respondents: Ms S. Russo of HWL Ebsworth Lawyers ORDERS
SYG 2479 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERD20
ApplicantAND: MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application filed on 2 November 2020 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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application filed on 2 November 2020, under s 477(2) of the Migration Act 1958 (Cth) (Act), seeking an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 April 2020.
The Tribunal found that it had no jurisdiction to consider the application for review of a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).
The originating application was filed on 2 November 2020 (originating application), 165 days after the expiry of the 35-day filing period.
Having not been satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is dismissed for the following reasons.
BACKGROUND
The background of the matter was set out in the Minister’s written submission which I primarily adopt.
The applicant is a citizen of Malaysia.[1]
[1] Court Book (CB) 32.
On 2 November 2019, the applicant applied for a protection visa. In his protection visa application, the applicant nominated a Gmail email address for correspondence and specifically consented to electronic communication.[2] Further, the applicant claimed to fear harm from money lenders to whom he owed money.[3]
[2] CB 5.
[3] CB 13 to 15.
On 21 January 2020, the delegate refused to grant the applicant a protection visa.[4]
[4] CB 38 to 47.
The applicant was notified of the delegate’s decision by way of letter dated 21 January 2020 and sent to the applicant’s Gmail address. This was the same email address that was provided to the Tribunal and to the Court in the applications for review.[5]
[5] CB 38.
The review application
On 21 February 2020, the applicant applied to the Tribunal for review of the delegate’s decision.[6]
[6] CB 48.
On 26 February 2020, the Tribunal wrote to the applicant and invited him to comment in writing by 11 March 2020 on the validity of his application for review, noting that it had been filed out of time (Tribunal invitation).[7]
[7] CB 54.
On 29 February 2020, the applicant wrote to the Tribunal with the following inquiry (without alteration):
Can i get Address for invitation that.
On 1 March 2020, the Tribunal responded to the applicant’s inquiry with email and postal address details where he could send his written response to the Tribunal invitation.[8]
[8] CB 57.
On 4 March 2020, the applicant responded to the Tribunal invitation stating that his phone had been broken and that he did not have money to fix his phone. He further stated that his phone was fixed on or by 21 February 2020, after which he applied ‘straight away’ to the Tribunal.[9]
[9] CB 59.
The Tribunal’s decision
On 17 April 2020, the Tribunal made its decision. In its decision, the Tribunal:[10]
(a)found it had no jurisdiction to review the delegate’s decision;
(b)noted that, as the applicant was not in immigration detention on the day he was notified of the decision, the application for review had to be made within 28 days commencing on that day.
(c)noted that the applicant was notified of the delegate’s decision by letter dated 21 January 2020;
(d)noted that the prescribed period to apply for review ended on 17 February 2020 and found that the Tribunal had no jurisdiction in the matter as the application for review was not lodged until 21 February 2020.
[10] CB 66.
RELEVANT LEGISLATION
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the time of the Tribunal’s decision, it relevantly provided:
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)
(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975— the date of the written decision under that subsection; or
(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 — the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7 — the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca) in the case of a migration decision made by the Immigration Assessment Authority — the date of the written statement under subsection 473EA(1); or
(d) in any other case — the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
PROCEEDINGS IN THIS COURT
The applicant commenced proceedings by way of an originating application filed on 2 November 2020 that was accompanied by an Affidavit annexing, amongst other things, the Tribunal’s decision dated 17 April 2020. As the Tribunal’s decision was dated 17 April 2020, the applicant had until 22 May 2020 to file his application for judicial review. Because the application was not filed until 2 November 2020, this application was brought 165 days out of time.
The applicant was afforded the opportunity to file an amended application, any further Affidavit evidence and written submissions. The applicant did not avail himself of this opportunity.
CONSIDERATION
Returning to the application, the consequence of it having been filed late is that the Court must consider the two limbs of s 477(2) of the Act.
Application in writing specifying reasons
The first limb contained in s 477(2)(a) of the Act is whether the application has been made to the Court in writing detailing why the extension should be granted.
In his originating application, the applicant specified the following grounds as to why he says it is in the interests of the administration of justice for the Court to grant a time extension (without alteration):
1.I am late in filing my case to the court because I did not know about the process after my review to the Administrative Appeals Tribunal.
2.I was only able to file my case when a friend advised me how to file my case to the Federal Circuit Court.
Section 477(2)(a) of the Act is thus satisfied.
Necessary in the interests of the administration of justice
The second limb of s 477(2)(b) allows the Court to grant an extension of time for the filing of an application, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 919 (Tu’uta Katoa) at [12], the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time but the Court may look at a myriad of facts and circumstances including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.
The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case, Jagot and Halley JJ found that the Court has an obligation to ‘evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice’.[11] Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(a)the extent of the delay and explanation for it;
(b)any prejudice to the respondent if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
[11] BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [40].
The extent of the delay and explanation for it
As stated above at [3] and [17], the applicant’s delay in filing his judicial review application amounts to 165 days out of time. The delay is relatively short.
Typically, the longer the delay the more persuasive the explanation for that delay needs to be. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse extension of time in the case of long delay.[12]
[12] Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]; Jess v Scott (1986) 12 FCR 187 at [195].
At hearing, when asked to expand on his grounds, set out above at [21], and provide reasons for why there was a delay filing his application, the applicant stated that he did not understand why he was 165 days late, that he thought the issue was that he was late in “responding” to the AAT by 3 days. When the procedural history of his application before the Court was explained to him, the applicant stated that he did not understand the Court process. I understood this to mean that the applicant was not aware of the requirement to file his application within the requisite period in order to avoid having to seek an extension of time.
The Minster, relying on written submissions, argued that the applicant’s written grounds and oral submissions did not constitute a satisfactory explanation for the delay. The Minister argued that the applicant had been made aware of the time frame within which to apply for judicial review by way of the following information specified in the Fact Sheet ‘Information about decisions – MR Division’ attached to the Tribunal’s notification letter to the applicant:
Review of decisions
…If you wish to apply for review, you must do so within 35 days of the date of our decision.[13]
[13] CB 63.
The Minister submitted, and I agree, that ignorance of the time limits is generally not a satisfactory explanation for a failure to comply with them: see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38] per Foster J.
Having considered the parties’ submissions and the available evidence, I am of the view that the applicant has not offered a satisfactory explanation for the delay in making this application.
In the absence of a satisfactory and acceptable explanation, this delay weighs against the grant of an extension.
Any prejudice to the respondent if an extension were granted
In oral submissions, the Minister properly submitted that they would not suffer any prejudice if the applicant were granted an Order allowing an extension of time, other than as to costs.
The mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing.[14]
[14] SZTRYvMinister for Immigration & Border Protection [2015] FCAFC 86 at [6].
I consider this factor neutral regarding the grant of an extension.
Public interest and impact on the applicant
There is a public interest in ensuring that administrative decisions are made lawfully. The merits of the substantive ground relied upon by the applicant, which are considered below, will be relevant in this regard. It has also been recognised that there is a public interest in the finality of administrative decisions.[15]
[15] Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [15]-[17]; HCA 67.
With regard to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand, with all the consequences that follow for his protection visa application. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, however an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth).
I accept that the impact on the applicant is significant in that they would be returned to their country of nationality which is a circumstance they claim to fear. I consider this to be a matter weighing in favour of the grant of an extension.
The merits of the substantive application
In considering whether a proposed appeal has merit, the Court will do so at a ‘reasonably impressionistic level’ by way of assessing whether the proposed grounds are ‘arguable’, ‘reasonably arguable’ or ‘sufficiently arguable’ to warrant the grant of extension of time.[16] 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 that may warrant an extension being granted.[17]
[16] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392 at [62]-[63], approved by the Full Court in MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110.
[17] MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (MZAIB).
The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu’uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):
For example, if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
In his application, the applicant relies on the following three grounds of review (reproduced without alteration):
1.The decision made to refuse my Protection Visa application has a jurisdictional error.
2.The decision maker’s statement about the applicant not facing harm when returned to Malaysia is purely based on his/her personal opinion and not on any facts
3.The decision maker’s findings on the Royal Malaysian Police is based on data that was falsely reported.
Although invited to elaborate on these grounds at hearing, the applicant did not provide any further particulars for the Court’s consideration that were relevant to any complaint relating to the Tribunal’s decision. The applicant further acknowledged that the fault in the delay in the lodgment of his review application lay with him and not the Minister.
Mindful of the Court’s obligations towards unrepresented litigants,[18] I have scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. I have also read the applicant’s grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal’s part. Nevertheless, I am of the view that error has not been disclosed on the Tribunal’s part and, for the following reasons, am not persuaded that a reasonably arguable case of jurisdictional error arises out of the grounds of the substantive application.
[18] MZAIB at [59]-[77], [100] and [112]-[113].
Grounds of review
The applicant’s complaints in relation to each of his three grounds, when read individually and cumulatively, arise out of a concern with the decision to refuse to grant the protection visa. The concern does not extend further than a critique of the delegate’s decision.
When pressed at hearing to further particularise these grounds further, the applicant was unable to do so. it became readily apparent during the hearing that the applicant had no complaint with the Tribunal’s decision.
Insofar as these grounds pertained to the delegate’s decision, I agree with the Minister that this Court does not have jurisdiction to review a primary decision made by a delegate of the first respondent’s Department. Therefore, these grounds must fail.
For these reasons, the merits of the substantive judicial review application are lacking and this weighs heavily against granting an extension of time.
CONCLUSION
As the application in this case is 165 days outside the statutory timeframe, the Court may only grant an extension of time within which the application was to be made if it is satisfied such extension is in the interests of the administration of justice.
Taking into account all of the considerations above, particularly the absence of a satisfactory explanation for the delay and lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, I am not satisfied it is in the interests of the administration of justice that time be extended in this matter.
Therefore, the application is dismissed.
I will hear the parties in relation to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 6 December 2024
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