FHR20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 310
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FHR20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 310
File number(s): SYG 2970 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 7 March 2025 Catchwords: MIGRATION - judicial review – extension of time application – merits of underlying application - extension of time refused – costs ordered. Legislation: Migration Act 1958 (Cth) s 477
Federal Court and Federal Circuit Court Regulations 2012 (Cth) reg 2.06
Migration Regulations 1994 (Cth) reg 2.20, Sch 2 cl 050.211, 051.211, 051.512
Cases cited: BMH20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 301
Gill v Minister for Immigration and Border Protection [2017] FCAFC 51
Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
VFAY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 14
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 5 February 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Ms S. Edmondstone of Minter Ellison ORDERS
SYG 2970 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FHR20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The application for an extension of time lodged on 23 December 2020 is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $8,371.30.
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 ZIPSER
INTRODUCTION
On 23 December 2020, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 28 October 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Bridging E (class WE) visa under s 65 of the Act. In light of the time limit in s 477 of the Act, the application was lodged out of time and the applicant requires an extension of time.
For the reasons that follow, the application for an extension of time is dismissed.
FACTUAL BACKGROUND
On 23 October 2018, the applicant lodged an application for a Bridging E (class WE) visa.
On 3 December 2018, a delegate of the first respondent refused to grant the visa.
On 6 December 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
On 8 October 2020, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments on 28 October 2020.
On 28 October 2020, the applicant appeared before the Tribunal with the assistance of a Bengali interpreter.
On 28 October 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant the bridging visa.
TRIBUNAL’S DECISION
At the time the applicant applied for a Bridging E (Class WE) visa, Class WE contained two subclasses – subclass 050 and 051.
In relation to a subclass 051 visa, cl 051.211 (located in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)) required that an applicant “is an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11)”. Each of reg 2.20(7), (8), (9) and (10) of the Regulations only applied to a non-citizen:
if:
(i)the non - citizen made a protection visa application that is not finally determined; or
(ii)the non - citizen applied for judicial review of a decision to refuse a protection visa; or
(iii)the Minister has applied for judicial review of a decision in relation to the non - citizen's protection visa application; …
In the present case, the applicant had applied for judicial review of a decision of the Tribunal refusing to grant the applicant a protection visa. The judicial review proceeding, including all appeals, ended when the High Court dismissed an application on 10 May 2017. The Tribunal found at [11] in respect of his application for a Bridging E (Class WE) visa that:
… at the time of application, on 23 October 2018, the applicant did not have a protection visa application that was ongoing or subject to judicial review. He therefore does not satisfy r.2.20(7)(b), (8)(b), (9)(b) or 10(b). He is therefore not an eligible non-citizen referred to in these subregulations.
The Tribunal found that the applicant did not meet reg 2.20(11).
Since the applicant met none of reg 2.20(7), (8), (9), (10) or (11), he did not satisfy cl 051.211.
In relation to a subclass 050 visa, cl 050.211(2) required that the applicant “is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (17) or (18)”. Regulation 2.20(17) provided:
This subregulation applies to a non - citizen if:
(a) the non - citizen is an unlawful non - citizen; and
(b) section 195A of the Act is not available to the Minister in relation to the grant of a visa to the non - citizen; and
(c) the Minister is satisfied that the non - citizen's removal from Australia is not reasonably practicable at that time.
The Tribunal at [19] stated that it “is satisfied on the available evidence that, despite the applicant’s status as an unlawful non-citizen, his removal had not been reasonably practicable (at the time of application)”. The Tribunal continued at [20] that, since the applicant was an eligible non-citizen of the kind set out in reg 2.20(17), he did not satisfy cl 050.211(2).
The Tribunal found that the applicant did not satisfy the criteria for the grant of a subclass 051 visa or a subclass 050 visa.
PROCEEDINGS IN THIS COURT
Application and steps up to 4 February 2025
On 23 December 2020, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision (Application). The application included two grounds as follows (reproduced as written):
Ground One:
The Tribunal fell into error by making factual assumptions and conclusions that were not supported by evidence and by failing to articulate the circumstances under which an undocumented person can be returned to the Receiving Country.
Ground Two:
The Authority fell into error by failing to deal with an integer of the Applicant’s claims leading to a failure to exercise jurisdiction.
In light of the time limit for filing applications in s 477 of the Act, the applicant filed the application about 21 days after the expiry of the time limit and required an extension of time. The applicant's reasons for delay provided in an accompanying affidavit were (as written):
3. I am currently unemployed and was unable to save funds to lodge this application in a timely manner and therefore request the honourable Court to hear my prayers.
4. I apologies to the Court for any inconvenience this may have caused.
On 25 February 2021, a registrar made procedural orders, including that the applicant file and serve by 20 May 2021 any amended application with proper particulars and any further affidavit or other evidence in support of the extension of time. The applicant did not file any documents in response to this order.
On 1 November 2024, a registrar made orders that the applicant file and serve the following at least 28 days before the hearing:
(a)any written submissions; and
(b)any further affidavit evidence on which the applicant seeks to rely.
On 11 December 2024, the parties were notified by the Court that the proceeding was listed for hearing on 5 February 2025.
The applicant did not file a written submission or any further affidavit evidence before the hearing on 5 February 2025.
Hearing on 5 February 2025
At the hearing on 5 February 2025, the applicant appeared in person. Sophie Edmondstone from Minter Ellison appeared for the first respondent.
Ms Edmondstone tendered a Court Book which contained a copy of the Tribunal’s decision and documents which were before the Tribunal.
The applicant brought his copy of the Court Book to the hearing. I directed the applicant’s attention to the Tribunal’s decision in the Court Book. I explained to the applicant that there were two matters he must address today. First, he must persuade the Court there was a jurisdictional error, which is like a significant error or mistake, in the Tribunal’s decision. I explained the main categories of jurisdictional error. Second, the applicant must provide a satisfactory explanation for his delay of 21 days in commencing this Court proceeding.
In relation to whether there was a jurisdictional error in the Tribunal’s decision, the applicant stated that he feels good in Australia, and he would have many problems in Bangladesh if he returned. The applicant did not make a submission addressing or complaining about any part of the Tribunal’s decision or procedure.
In relation to the applicant’s delay in commencing this Court proceeding, the applicant recalled that he commenced the Court proceeding late. I told the applicant that the explanation in his affidavit was unsatisfactory because it does not address:
(a)whether the applicant applied for an exemption from paying the Court filing fee;
(b)if he did not apply for an exemption, why he did not apply and the circumstances in which he could afford the filing fee by 23 December 2020 but not earlier; and
(c)if he applied for an exemption, when he applied.
The applicant asked if he could give further evidence. Ms Edmondstone did not object. I permitted the applicant to give further evidence orally. After the applicant took an oath, I asked the applicant to explain, in as much detail as he could recall, events between 28 October 2020 and 23 December 2020 relating to the late commencement of the Court proceeding. The applicant stated that he did not have work at the time the Tribunal made its decision and so could not pay the court filing fee at that time, but he then managed to get work and save money to pay the court filing fee. Ms Edmondstone did not wish to cross-examine the applicant.
EXTENSION OF TIME PROVISIONS
Section 477 of the Act relevantly provides:
(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 and Family Court of Australia (Division 2) 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.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Katoa) at [12], the plurality stated in respect of the equivalent provision in s 477A(2) that “the paragraph allows the Court to 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” and “the level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice”.
In relation to the merits of the underlying application, one matter considered in Katoa was the degree or extent to which the Court may or should consider the merits of the underlying application. The plurality stated at [17]-[19] that “in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a reasonably impressionistic level”, but “there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits”, and ultimately the provision “entrusts to the [Court] the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application”.
CONSIDERATION
Length of delay and reasons for delay
The 35-day timeframe for the applicant to apply to the Court for judicial review of the Tribunal’s decision ended on 2 December 2020. The applicant did not apply for judicial review until 23 December 2020, which was 21 days after the expiry of the 35-day timeframe. He therefore requires an extension of time of about 21 days.
The applicant's reason in his affidavit for the delay is that he was “currently unemployed and was unable to save funds to lodge this application in a timely manner”. It appears from the applicant’s oral evidence that he did not apply for an exemption from paying the Court filing fee on grounds of financial hardship under reg 2.06 of the Federal Court and Federal Circuit Court Regulations 2012 (Cth), but eventually managed to find funds to pay the filing fee. I am not persuaded that the applicant coincidentally managed to find a job between 28 October 2020 and 23 December 2020 which allowed him to save money to pay the Court filing fee. However, I am willing to accept that it would have been difficult for him to save money to pay the Court filing fee, and this may have contributed to his delay. I also note that the applicant did not explain why he did not apply for an exemption from paying the Court filing fee.
The applicant’s explanation for his delay is not entirely satisfactory. However, as acknowledged in the first respondent’s written submission, the delay of 21 days is “not significant”.
Prejudice to first respondent
It is stated in the first respondent’s written submission that the first respondent would not suffer substantial prejudice if time were to be extended. The first respondent adds that there is a significant public interest in the timely and effective disposal of litigation.
Merits of underlying application
Ground 1 in Application: I agree with the first respondent’s written submission that ground 1 is not sufficiently particularised to be the subject of a meaningful response and, for that reason alone, should be dismissed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (WZAVW) at [35].
Ground 2 in Application: I agree with the first respondent’s written submission that ground 2 is not sufficiently particularised to be the subject of a meaningful response and, for that reason alone, should be dismissed: see WZAVW at [35].
Other grounds: Since the applicant was unrepresented at all stages of the Court proceeding, as stated in an earlier Federal Court decision cited in Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543 (Gomez) at [23], in preparing for the hearing “I … scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error”. In Gomez at [23] the Full Court added that “where a mistake clearly appears in the Tribunal’s reasons, justice and fair play requires that it be addressed”, but “there is not … any obligation on a judge to undertake the role of the advocate for an unrepresented litigant”. With these propositions in mind, during the hearing on 5 February 2025 I directed the parties’ attention to two findings of the Tribunal which concerned me and invited a post-hearing written submission from the first respondent, followed by any submission in reply from the applicant.
The first finding which concerned me involved reg 2.20 of the Regulations. The Tribunal stated at [11]:
The Tribunal finds that, at the time of application, on 23 October 2018, the applicant did not have a protection visa application that was ongoing or subject to judicial review. He therefore does not satisfy r.2.20(7)(b), (8)(b), (9)(b) or 10(b). He is therefore not an eligible non-citizen referred to in these subregulations.
Within paragraph (b) of reg 2.20(7), (8), (9) and (10), sub-paragraph (i) contains the words “that is not finally determined”, but sub-paragraph (ii) does not contain these or any similar words. One possible construction of sub-paragraph (ii) is that paragraph (b) is satisfied once “the non-citizen applied for judicial review of a decision to refuse a protection visa” and continues to be satisfied after the judicial review application is finally determined. If this construction is correct, the Tribunal erred in finding at [11] that the applicant did not satisfy paragraph (b). While this construction of sub-paragraph (ii) would have an odd and unlikely consequence, I considered it appropriate to raise this issue with the parties and invite a post-hearing submission. A summary of the first respondent’s helpful post-hearing submission is:
(a)Irrespective of the interpretation of sub-paragraph (b)(ii) in reg 2.20(7), (8), (9) and (10), the applicant could not satisfy the entirety of reg 2.20(7) (see paragraph (c) which requires the non-citizen to be under 18), reg 2.20(8) (see paragraph (c) which requires the non-citizen to be 75 or older), reg 2.20(9) (see paragraph (c) which requires the non-citizen to have a special need in respect of which a medical specialist appointed by Immigration has certified that the non-citizen cannot properly be cared for in a detention environment), or reg 2.20(10) (see paragraph (c) which requires the non-citizen to be a spouse or de facto partner of an Australian citizen).
(b)In relation to the interpretation of sub-paragraph (b)(ii), the reasoning in VFAY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 14; 134 FCR 402 (VFAY) supports the construction of sub-paragraph (b)(ii) applied by the Tribunal. Also, sub-paragraph (b)(ii) should be construed with regard to cl 051.512 of Schedule 2 which concerns when a subclass 051 bridging visa granted to a person on the basis of a judicial review application is in effect.
In a reply submission filed by the applicant on 5 March 2025, which appears to have been prepared by a lawyer:
(a)The applicant did not cavil with the proposition that he could not satisfy any of reg 2.20(7)(c), 2.20(8)(c), 2.20(9)(c) or 2.20(10)(c).
(b)The applicant did not disagree with or otherwise respond to the first respondent’s reliance on VFAY and cl 051.512 of Schedule 2.
(c)The applicant stated that the first respondent’s position “denies the applicant the opportunity of a fair determination of their eligibility” and “a purposive approach should be applied to interpret reg 2.20(7)(b)(ii) and its equivalents”.
There is some force in the points made by the first respondent. In relation to the point in paragraph 40(a) above, while I note “the need for considerable caution before a remedy, such as mandamus, is withheld on the ground of lack of utility even where a jurisdictional error has been demonstrated” (Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [96]), based on information in the Court Book, the applicant could not satisfy paragraph (c) in reg 2.20(7), (8), (9) or (10) and the applicant has not contended or provided information in his reply submission that he could comply. In relation to the point in paragraph 40(b) above, I agree that VFAY supports the construction of subparagraph (b)(ii) applied by the Tribunal. I do not need to determine this issue since it was not pleaded in the Application and the applicant was not granted leave at the hearing on 5 February 2025 to include the ground in his application. It is sufficient to say that this is not a case where “a mistake clearly appears in the Tribunal’s reasons” such that “justice and fair play requires that it be addressed”.
The second finding which concerned me involved reg 2.20(17) of the Regulations. The Tribunal stated at [19]:
The Tribunal is satisfied on the available evidence that, despite the applicant's status as an unlawful non-citizen, his removal had not been reasonably practicable (at the time of application): r.2.20(17)(c).
The “available evidence” to which the Tribunal refers is not apparent from the Tribunal’s reasons for decision. It is not clear to me how the Tribunal arrived at its finding that the applicant’s “removal had not been reasonably practicable”, although I note the delegate made the same finding in her decision dated 3 December 2018. A summary of the first respondent’s helpful post-hearing submission is:
(a)In BMH20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 301, the Court referred to the broad range of factors relevant to “reasonable practicability” of removal that are required to be considered to reach the necessary state of satisfaction under reg 2.20(17)(c).
(b)It was open to the Tribunal to find that removal of the applicant was not reasonably practicable where there was no evidence to indicate removal was practicable.
The applicant did not address this issue in his reply submission. There may be some force in the points made by the first respondent. The discussion in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398 may also be relevant in considering this issue. Again, I do not need to determine this issue since it was not pleaded in the Application and the applicant was not granted leave at the hearing on 5 February 2025 to include the ground in his application. It is sufficient to say that this is not a case where “a mistake clearly appears in the Tribunal’s reasons” such that “justice and fair play requires that it be addressed”.
Conclusion on extension of time application
The Court may only grant an extension of time if it “is satisfied that it is necessary in the interests of the administration of justice to make the order”. In light of the lack of any reasonably arguable case of jurisdictional error in the Application, I am not satisfied that it is necessary in the interests of the administration of justice to order that time be extended in this matter.
Therefore, I dismiss the application for an extension of time.
COSTS
Since the first respondent undertook further work, at the Court’s request, following the hearing on 5 February 2025, it was not appropriate to hear submissions on costs at the end of the hearing. I will hear submissions on costs at the delivery of judgment.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 7 March 2025
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