Ewo20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 250
•15 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EWO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 250
File number(s): SYG 2660 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 15 February 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa - refusal of an extension of time for a show cause application. Legislation: Migration Act 1958 (Cth), ss 36, 66, 411, 412, 477, 494B, 494C
Migration Regulations 1994 (Cth)
Federal Circuit Court Rules 2001 (Cth), r 44.15
Cases cited: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246
Fahme v Minister for Home Affairs (2019) 268 FCR 394
Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407
Monga v Minister for Immigration and Border Protection [2019] FCA 286
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Number of paragraphs: 35 Date of hearing: 15 February 2021 Place: Sydney The Applicant appeared in person Solicitor for the Respondents: Mr G Pasas of Clayton Utz ORDERS
SYG 2660 of 2020 BETWEEN: EWO20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
15 FEBRUARY 2021
INTERLOCUTORY ORDERS:
The application for an extension of time is refused, pursuant to s 477(2) of the Migration Act 1958 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 28 September 2020. The Tribunal decided that it did not have jurisdiction in the matter. That was because the review application to the Tribunal had not been received within the prescribed period. Background facts relating to this matter are set out in the Minister’s outline of submissions, which I adopt.
Procedural history
The applicant applied for the protection visa on 24 March 2016.[1] On 17 March 2020,[2] a delegate of the Minister (delegate) refused the protection visa application as they were not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[3]
[1] Court Book (CB) 1-58.
[2] This is incorrectly described in the Tribunal's decision as having taken place a day later (18 March 2020). The latter date is the date that the delegate's decision was sent to the applicant.
[3] CB 183-191.
On 4 September 2020, the applicant applied to the Tribunal for review of that decision.[4]
[4] CB 196-202.
On 25 September 2020, the Tribunal sent a letter to the applicant in the following terms:[5]
It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46].
The primary decision was emailed to you on 18 March 2020 meaning that 18 March 2020 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 14 April 2020. As the application was not received until 4 September 2020, it appears to be out of time. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 9 October 2020. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
…
(emphasis in original)
[5] CB 231-232.
On the same day, the applicant wrote to the Tribunal and stated that she wished to withdraw her application.[6] It is not clear why the review was not terminated at that point.
[6] CB 237.
On 28 September 2020, the Tribunal issued its decision concluding that it did not have jurisdiction to review the delegate's decision.[7] In its Statement of Decisions and Reasons, the Tribunal:
(a)summarised the procedural history of the matter and the applicant's recent visa history;[8]
(b)noted that the delegate's decision was made on 18 March 2020 and stated that it was satisfied that the applicant was notified of the decision on that day in accordance with the statutory requirements;[9]
(c)noted that an application for review of the decision had to be made within 28 days, but was actually made on 4 September 2020;[10] and
(d)therefore concluded that it did not have jurisdiction as the application for review was not made in accordance with the relevant legislation.[11]
[7] CB 241-243.
[8] Decision and Reasons (DR) at [1]-[9] (CB 242-243).
[9] DR at [1], [3], [10] (CB 242-243).
[10] DR at [1], [2], [11] (CB 242-243).
[11] DR at [11]-[12] (CB 243).
The applicant requires and seeks an extension of time for her judicial review application. It was not received within the period specified in s 477(1) of the Migration Act. The Minister’s submissions deal with the legislation and the relevant principles. I agree with and accept those submissions.
Application for extension of time
The applicant applied to the this Court for judicial review on 20 November 2020, being 18 days outside the 35 day deadline set by s 477 of the Migration Act. Accordingly, the applicant requires an order that the time for filing the application for judicial review be extended, pursuant to s 477(2) of the Migration Act.
The grounds of the application for extension of time are stated as being “Find on previously file [sic] document (Affidavit)”. That affidavit appears to provide an explanation for the delay on the basis of the applicant's mental health difficulties, her time in immigration detention, and her lack of communication skills.[12]
[12] Applicant's affidavit dated 23 October 2020.
Strictly read, it appears that that affidavit is directed at why the applicant's application to the Tribunal was out of time, rather than explaining why her application to the Federal Circuit Court was out of time. In circumstances, however, where the applicant is unrepresented, it is appropriate to interpret the affidavit generously and consider those matters as also attempting to explain her delay in applying to this Court. The applicant confirmed that position in her oral submissions.
Principles in relation to the extension of time application
Section 477(2) of the Migration Act provides that the Court may extend the time for filing an application if satisfied, after balancing the relevant considerations,[13] that it is “necessary in the interests of the administration of justice” to do so. It is incumbent upon the applicant to satisfy the Court that the interests of justice favour the extension,[14] this being “part of or a necessary consideration in the discretion’s exercise”.[15]
[13] DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246 at [77].
[14] SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [58].
[15] DHX17 at [35] and [38].
The Minister submits that even if it were accepted that:
(a)no specific, identifiable prejudice will be suffered if the applicant is granted the extension of time sought; and
(b)the applicant's explanation for the 18-day delay is considered satisfactory
the application to enlarge time should be refused because the application for review is unmeritorious. Indeed, “it will seldom be in the interests of the administration of justice to grant leave where an appeal has little to no prospects of success”.[16]
[16] MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62]-[63].
The Full Federal Court has recently confirmed that the appropriate approach to the exercise of the power in s 477(2) requires the Court to consider, at a “reasonably impressionistic level” by reference only to the grounds “on their face”, whether the proposed application is “plainly hopeless”, “reasonably [or sufficiently] arguable”, or has “reasonable prospects of success”.[17]
[17] DHX17 at [45] and [76].
If the Court goes beyond this threshold assessment of merit and undertakes a “substantive analysis of the merits” of the proposed application, “as if they were being determined at a hearing”, it will misconceive its function or power and act in excess of its jurisdiction.[18]
[18] DHX17 at [44], [68], [76].
The applicant’s delay of 18 days in the present case is moderate. She provides a plausible explanation for that delay in her affidavit filed on 24 November 2020. I received the affidavit that was augmented orally by the applicant this morning[19]. I accept that she has suffered mental health problems and was hospitalised. She has also had to endure a lengthy period of homelessness. I accept her explanation for the delay.
[19] I also received the Court Book filed on 23 December 2020.
The real difficulty in the present case relates to the merit of the judicial review application. That is dealt with in the Minister’s submissions.
The Minister submits that, even assessed at a reasonably impressionistic level, the “grounds” of review outlined in the application lack sufficient merit, such that they may be described as “plainly hopeless”, “unarguable” or as lacking “reasonable prospects of success”. Accordingly, this factor ought to weigh heavily against the grant of the relief sought.
I accept that there is no error disclosed in the Tribunal’s decision because:
(a)there is no contest that the applicant was properly notified of the delegate's decision, in accordance with the requirements set out in the Migration Act; and
(b)the applicant did not apply to the Tribunal for review in accordance with the time limits set out by the Migration Act and the Migration Regulations 1994 (Cth) (Regulations).
In circumstances where the Tribunal had no discretion to extend, alter or waive the application period,[20] any explanation given by the applicant for the lateness of her application is irrelevant. This is because those explanations are simply not capable of affecting the objective existence of Tribunal's jurisdiction.[21]
[20] Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15 at [60]-[84].
[21] Monga v Minister for Immigration and Border Protection [2019] FCA 286 at [24].
When was the applicant notified of the delegate’s decision?
Section 66(1) of the Migration Act requires the Minister notify an applicant of a decision to grant or refuse to grant a visa “in the prescribed way”.
Regulation 2.16(3) of the Regulations prescribes, for the purposes of s 66(1) of the Migration Act, that a delegate’s decision to refuse to grant a visa must be notified by a method specified in s 494B of the Migration Act.
As the Tribunal found, the applicant was notified of the delegate's decision by way of email on 18 March 2020.[22]
[22] CB 179-182.
Email is a prescribed method for the delivery of documents under s 494B(5)(b) of the Migration Act. The notification of refusal was dispatched to the applicant’s email address, which was the email address for correspondence provided by the applicant.
In those circumstances, s 494C(5) of the Migration Act operates such that the applicant is therefore “taken to have received the document at the end of the day on which the document is transmitted”, whether or not she did in fact so receive it.[23] As such, the Tribunal was correct to find that the applicant was notified of the delegate's refusal decision on 18 March 2020.
[23] Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13]-[14].
When did any application for review have to be made?
Section 412(1)(b) of the Migration Act requires any application for review to the Tribunal of a “Part 7-reviewable decision” to be made within the “period prescribed”, being a period ending “not later than … 28 days after notification of the decision”[24]. This date expired on 14 April 2020.
[24] Section 411(1)(c) of the Migration Act.
The application for review was filed on 4 September 2020,[25] and thus made well after this deadline. Accordingly, the Tribunal was correct to conclude that it did not have jurisdiction to consider the application, and was prohibited from doing so.[26]
[25] CB 196-202.
[26] Fahme v Minister for Home Affairs (2019) 268 FCR 394 at [20]-[23]; Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 at [42]-[49].
Application for judicial review
If time is enlarged, the applicant seeks orders that the Tribunal's decision should be set aside because her delay in applying to the Tribunal was explainable by reference to:
(a)her inability to check e-mail given COVID-19 restrictions; and
(b)her mental health problems which prevented her from being able to apply to the Tribunal for review within the allowed time-frame.
For the reasons set out above, I find that the Tribunal did not err in finding that it did not have jurisdiction.
As I explained to the applicant, the Tribunal had no discretion in the matter; provided that the applicant had been properly notified of the decision of the delegate, there was nothing the Tribunal could do. The Minister’s submissions deal with the procedural requirements for a valid notification. I accept those submissions. The applicant explained her difficulty in relation to the receipt of correspondence, and responding to it, at the relevant time. The relevant issue here, however, is not receipt, but lawful dispatch.
In addition, I have examined the notification letter, reproduced at CB 179 - 182. In contrast to earlier forms of the notification letter, which have been subject to judicial criticism, this letter sets out clearly, and in one place, the applicant’s rights of review. I can see no arguable case of jurisdictional error arising either from the proposed application, or from my own examination of the court book.
CONCLUSION
I conclude that the interests of the administration of justice do not require the granting of an extension of time in this case. I will therefore refuse the application of an extension of time. The consequence is that the judicial review application is incompetent.
In consequence of the refusal of an extension of time, the Minister seeks an order for legal costs. The Minister seeks the scale amount of $3,737. The applicant claims impecuniosity which, in her circumstances, is unsurprising. However, as has been repeatedly stated, impecuniosity is not a reason for the Court to refrain from making a costs order. I have explained to the applicant options available to her in relation to payment of the costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 23 February 2021
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