Fci18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 262
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FCI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 262
File number(s): MLG 2929 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 22 March 2024 Catchwords: MIGRATION- Application for an extension of time – Applicant did not pay prescribed fee within a reasonable period of time – Tribunal found they had no jurisdiction to review the matter – Application for judicial review. Legislation: Migration Act 1958 (Cth) ss 347, 348, 477
Migration Regulations 1994 (Cth) rr 4.10, 4.13
Cases cited: AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619
Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
SZTSU v Federal Circuit Court of Australia [2015] FCA 224
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 18 March 2024 Date of hearing: 18 March 2024 Place: Parramatta Counsel for the Applicant: In person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2929 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FCI18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
1.The application for leave to file out of time is refused.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $4189.38.
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 D HUMPHREYS
INTRODUCTION
The applicant is a citizen of Pakistan. The applicant has previously made an application for a protection visa, which has been refused. The applicant subsequently challenged the refusal of his protection visa application in the Tribunal, the then Federal Magistrates Court, the Federal Court and the High Court of Australia.
On 15 December 2017, the applicant was granted a Bridging Visa E (“bridging visa”) on the basis that he was making arrangements to leave the country. The applicant did not depart Australia by 14 January 2018. The bridging visa ceased on that date.
On 21 February 2018, the applicant applied for a further bridging visa on the basis that he had current proceedings in the High Court of Australia regarding the refusal of his protection visa application. The applicant’s application in the High Court of Australia was dismissed on 10 May 2018 and the proceedings were concluded.
On 12 June 2018, the delegate refused the applicant’s application for the further bridging visa.
The applicant then applied to the Administrative Appeals Tribunal (“the Tribunal”) for merits review of the delegate’ decision. At this time, the applicant paid 50 per cent of the prescribed fee, being approximately $865.50, and applied for a 50 per cent fee reduction.
On 12 July 2018, after having previously requested the applicant to provide evidence supporting the fee reduction application, the Tribunal refused to grant the applicant a fee reduction. In the letter to the applicant on 12 July 2018, the Tribunal requested payment of the remainder of the filing fee by 26 July 2018, by email to an address specified in the application for review.
The applicant provided additional supporting evidence for a fee reduction to the Tribunal on 31 July 2018. The applicant however did not pay the remainder of the filing fee as directed by the Tribunal.
On 22 August 2018, the Tribunal found that it did not have jurisdiction to conduct the review, as the applicant had not paid the prescribed fee for the application within a reasonable period.
On 1 October 2018, the applicant filed an application seeking judicial review of the Tribunal’s decision. As the application was filed outside the prescribed time frame, the applicant also seeks an extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the Tribunal’s decision in this Court.
For the reasons set out below, leave to file out of time should be refused and the application must be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal’s decision is relatively short and consisted of only eight paragraphs.
At [3], the Tribunal observed that pursuant to s 347(1) of the Act and r 4.13 of the Migration Regulations 1994 (Cth) (“the Regulations”), the application had to have been given to the Tribunal within the prescribed period and accompanied by the prescribed fee. This is qualified by the exception that a determination has to have been made under r 4.13(4) that the fee should be reduced on the basis of financial hardship.
The Tribunal observed that r 4.10 of the Regulations sets out the prescribed period for the fee to be paid, which begins when the applicant is notified of the decision. The applicant’s prescribed period for the filing fee to be paid ended on 3 July 2018.
At [5], the Tribunal noted that after the applicant had given further evidence to the Tribunal he had been directed to pay the remainder within 14 days of receiving the Tribunal’s letter dated 12 July 2018.
The Tribunal found at [7] that they did not have jurisdiction to review the decision as the applicant did not pay the fee within a reasonable period of time after they had been notified of the authorised Tribunal Officer’s decision. As such, the applicant’s application for review to the Tribunal was determined to not be valid.
GROUNDS OF JUDICIAL REVIEW
The grounds of review are contained in an Originating Application filed on 1 October 2018. The grounds are as follows:
1.FAIR PROCESS WAS NOT GIVEN BY TRIBUNAL.
2.WITH OUT CONSIDERING REAL FACTS DECISION WAS MADE.
Further to this, under the heading ‘final orders sought by applicant/s’ in the Application, the applicant also included:
1.A tribunal decision was made without proofs.
2.Decision has lawful errors.
The Court notes no particulars have been provided in relation to the proposed grounds. Bland assertions of jurisdictional error without particulars, such as in the current matter, may be dismissed for this reason alone; (see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the respondent’s written submissions had been translated to him.
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court he had been unable to arrange a lawyer to represent him. The applicant had left his wife and five children in Pakistan and was supporting them. It would be a waste of time for him to go back to Pakistan.
At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. The applicant answered that he did not have anything further to say.
SHOULD THE APPLICANT BE GRANTED AN EXTENSION OF TIME?
The applicant did not apply to this Court for judicial review until 1 October 2018, some five days out of time.
Section 477(1) of the Act provides:
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.
Relevantly, s 477(2) of the Act provides that the Court has a discretionary power to extend the time for making of an application, if it is satisfied that it is necessary to do so in the administration of justice.
It is only if the precondition that the Court is satisfied that an extension of time is “necessary” in the interests of the administration of justice that an order for extending time should be made; (see: SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [2]-[3] per Mortimer J). It is a discretionary matter for the Court, taking account of the following considerations; (see: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48]):
a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
b) Whether there is any prejudice to the other party; and
c) Whether the applicant’s substantive application for judicial review is sufficiently arguable to justify the granting of an extension of time.
The Court, however, should not exercise its discretion to extend time, even for a short period, if the application has no prospects of success. The substantive application should have such prospects of success so as not to render the extension of time as an exercise in futility.
The Court is not required to establish that the application will succeed at final hearing. The grounds of review should be examined on a reasonably impressionistic level to see whether or not there are reasonable prospects of success; (see: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]).
The applicant’s grounds for the extension of time, set out in an Originating Application filed on 1 October 2018 are as follows:
I put this application to AAT in error and then it was long weekend
The applicant’s explanation claimed he mistakenly lodged his application for review with the Tribunal instead of the Court. In its submissions, the first respondent asserted that the applicant’s explanation was correct as an Officer of the Tribunal submitted a case note noting the mistaken lodgement to the Tribunal on 27 September 2018. Further, 29 September 2018 was a public holiday in Victoria (Court Book page 95).
Although the extension of time required by the applicant is brief, the applicant does not have an adequate and reasonable explanation for the delay.
The applicant’s status as a self-represented litigant does not justify the delay. The first respondent submitted that it is the applicant’s responsibility to be aware of their review rights and any time limits attached to that; (see: SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 at [43]).
The applicant was provided by the Tribunal, with an information document titled “MR25 Information about decisions” which detailed the time period for which an application for judicial review to the Federal Circuit Court had to be filed (Court Book page 91).
The first respondent accepted that no specific prejudice would be occasioned to the Minister if the Court were to exercise its power to grant the extension of time. However, the first respondent relied on SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86, to assert that the absence of prejudice is not wholly enough to justify this extension being granted.
In relation to the merits of the substantive application, the first respondent submitted that the proposed grounds of review do not have “sufficient merit” to warrant an extension of time being granted.
The High Court of Australia in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819 at [17] – [18], found, in relation to an assessment of merits in the context of an assessment of time application that:
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”. …
18. However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their 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. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
(Citations omitted)
The first respondent submitted that as there are little to no prospects of success, it would not be in the interests of the administration of justice to grant the extension of time.
The Court notes the relatively short delay in the filing of the application for judicial review and the explanation given. There was a genuine mistake on the part of the applicant. This favours an extension being granted.
The Court notes the proper concession made on behalf of the first respondent that there is no specific prejudice by allowing an extension of time. Allowing an extension of time, in this case, would not impact on the finality of the administrative decision-making process in relation to this matter; (see: Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67). The Court considerers this factor to be neutral or slightly favouring an extension of time being granted.
This leaves consideration of the grounds of judicial review relied upon by the applicant. The Court is also mindful of the significance of a refusal by the Court to hear the matter on its merits to the applicant.
Ground one is a contention that a “fair process” was not administered by the Tribunal. The first respondent submitted that this may be understood as a complaint that the applicant was not afforded procedural fairness.
The Tribunal found that it did not have jurisdiction to review the matter. As such, the Tribunal’s review powers under s 348 of the Act or its procedural fairness obligations under Part 5, “Part 5 reviewable decision” was not enlivened.
The Tribunal complied with any common law procedural fairness obligations to the extent that they were required to be applied. The first respondent pointed out that the Tribunal was required to bring to the applicant’s attention the critical issue which would decide their determination. The Tribunal in those circumstances was not required to invite the applicant to attend a hearing on the issue of their jurisdiction to review the matter; (see: AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619 at [72]).
Further, the applicant had been informed of the procedure for an application to reduce the prescribed application fee. The applicant had been given two opportunities to provide supporting evidence. When the Tribunal notified the applicant that they had determined to refuse the request for a fee reduction, the applicant was informed the time he had to pay the remainder of the application fee. The first respondent submitted that the applicant was not denied procedural fairness.
Even at an impressionistic level, the Court is not satisfied ground one has merit. The applicant was advised that his fee reduction application had been denied. The applicant was requested to pay the additional fee. After the expiration of the time set, the applicant had still not paid the second half of the fee. In these circumstances, the Tribunal were entitled to consider the jurisdiction issue. There was no requirement for the applicant to be invited to a hearing to consider this matter; (see: AGS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 619 at [72]).
In relation to ground two, the first respondent submitted that the applicant’s complaint was not particularised and the “real facts” that the Tribunal should have considered in relation to his application are not identified.
The first respondent noted that the dispositive issue before the Tribunal had been whether it had jurisdiction to conduct a review of the decision and whether the fee had been paid within a reasonable period of time given that the Tribunal had made its determination under r 4.13 of the Regulations. In the absence of particulars, this ground is meaningless and not capable of being responded to by the Minister. The Court agrees with this submission. Even at an impressionistic level, ground two has no merit.
In regard to the further grounds that the applicant proposed to raise which are highlighted above, the first respondent submitted that the grounds were “meaningless without any particulars”.
It was submitted that where an applicant applied for a reduction of the prescribe fee, the application for review will be valid provided that “50% of the fee is paid within the prescribed period to seek review, and the fee is actually reduced” or that “the fee is paid within a ‘reasonable time’ after the application for fee reduction is rejected”.
In the applicant’s case however, after the fee reduction request was refused, he was given 14 days to pay the remaining 50 per cent, but he did not do so within the time. As such, the Tribunal handed down their decision on 22 August 2018, 41 days after the refusal. The first respondent submitted that it was open to the Tribunal to find that the remainder of the fee had not been paid within a reasonable time. These matters do not raise any jurisdictional error on the part of the Tribunal.
The first respondent also submitted that there is a lack of utility in remitting this application back to the Tribunal for merits review. This is because, the applicant’s application for a bridging visa was made on the basis of pending proceedings in the High Court of Australia, but they have since concluded. The first respondent submitted that the applicant did not identify any other reason for his entitlement to a bridging visa. In the instance that he made a further application, “there would be no bar on him doing so”. The Court agrees with this submission.
The Court is not satisfied that the grounds of judicial review have any merit, even on an impressionistic basis. In these circumstances, it would be pointless to allow an extension of time pursuant to s 477(2) of the Act. The Court is not satisfied it would be in the interests of the administration of justice to do so.
DISPOSITION
The application for leave to file out of time is refused. The application is dismissed. Costs must follow the event.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.
Associate:
Dated: 22 March 2024
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