FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FLX18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1357
File number(s): MLG 3110 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 3 December 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – application for judicial review filed out of time – extension of time application – whether there was an adequate explanation for a moderate delay – whether there was an arguable case of jurisdictional error – extension of time application refused Legislation: Migration Act 1958 (Cth) ss 36, 65, 411, 412, 414, 415, 426A, 430, 476, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.02
Federal Court Rules 2011 (Cth) r 36.03
Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submission/s: 3 December 2024 Date of hearing: 3 December 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Ms K. Petrovski Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3110 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FLX18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
3 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to “Administrative Review Tribunal”.
2.Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the application filed on 17 October 2018 is amended so as to seek a writ of mandamus.
3.Pursuant to rr 1.07 and 7.02 of the Rules, the Court dispenses with any requirement to make, file or serve an amended application as ordered in Order 2 above.
4.The application filed on 17 October 2018 for an extension of time in which to file the application for judicial review as amended is refused.
5.The applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $4,189.38.
6.Pursuant to r 17.02 of the Rules, the orders…
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Details
- AGLC
- FLX18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1357
- Case
- [2024] FedCFamC2G 1357
- Decision Date
CaseChat Overview and Summary
The matter of FLX18 v Minister for Immigration and Multicultural Affairs involves a Malaysian citizen who applied for a protection visa on 9 February 2017, citing discrimination based on his Christian faith and political activities. The delegate of the Minister refused the visa on 24 March 2017. The applicant sought review by the Administrative Appeals Tribunal, which affirmed the delegate's decision on 23 August 2018. An application for judicial review was lodged on 17 October 2018, 20 days beyond the statutory 35-day limit, and an extension of time was sought. The Minister opposed the extension, arguing the delay was unjustified and the application lacked merit. The court's primary task was to determine whether the applicant provided an adequate explanation for the delay and if the application had an arguable case of jurisdictional error.
The court found that the applicant's explanation for the delay was insufficient. Despite receiving a letter from the Tribunal on 24 August 2018, detailing the outcome of the review and the option to request a written statement of decision and reasons, the applicant did not act promptly. Instead, he waited until 15 October 2018 to formally request a written decision, and subsequently filed his application for judicial review on 17 October 2018. The applicant's claim that he did not receive a clear communication about the outcome and his options was not supported by the evidence, as he had actively engaged with the Tribunal via email throughout the review process. Additionally, the court considered the merits of the application for judicial review and concluded that it was not reasonably arguable that the Tribunal had made a jurisdictional error in affirming the delegate's decision.
The court dismissed the application for an extension of time. It held that the applicant's delay was not adequately explained and the application for judicial review did not present an arguable case of jurisdictional error. Consequently, the court refused the extension of time and ordered the applicant to pay the Minister's costs of the proceedings. The costs order was set to be effective from the date of publication of the written reasons for judgment, ensuring compliance with relevant procedural rules.
The court found that the applicant's explanation for the delay was insufficient. Despite receiving a letter from the Tribunal on 24 August 2018, detailing the outcome of the review and the option to request a written statement of decision and reasons, the applicant did not act promptly. Instead, he waited until 15 October 2018 to formally request a written decision, and subsequently filed his application for judicial review on 17 October 2018. The applicant's claim that he did not receive a clear communication about the outcome and his options was not supported by the evidence, as he had actively engaged with the Tribunal via email throughout the review process. Additionally, the court considered the merits of the application for judicial review and concluded that it was not reasonably arguable that the Tribunal had made a jurisdictional error in affirming the delegate's decision.
The court dismissed the application for an extension of time. It held that the applicant's delay was not adequately explained and the application for judicial review did not present an arguable case of jurisdictional error. Consequently, the court refused the extension of time and ordered the applicant to pay the Minister's costs of the proceedings. The costs order was set to be effective from the date of publication of the written reasons for judgment, ensuring compliance with relevant procedural rules.
Orders
Orders of the court
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Background
Background to the litigation
These reasons, revised from the transcript, explain why the Court dismissed the application and made the following orders: 4. The application filed on 17 October 2018 for an extension of time in which to file the application for judicial review as amended is refused.5. The applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $4,189.38.6. Pursuant to r 17.02 of the Rules, the orders 4 and 5 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.BACKGROUND The applicant, a citizen of Malaysia, applied for a protection visa on 9 February 2017. He claimed he would be discriminated against if he returned to Malaysia due to his Christian faith and political activities as an activist for the Sabah Sarawak Union – UK (SSU-UK). On 24 March 2017, a delegate of the Minister refused to grant him a visa. The applicant then applied to the Administrative Appeals Tribunal for merits review of the delegate's decision on 8 April 2017. Following hearings conducted in April and August 2018, the Tribunal delivered an oral decision affirming the delegate's decision on 23 August 2018. I note the applicant disputes that an oral decision was made that day. The Tribunal sent the applicant a letter outlining the outcome of the hearing and advising he could apply for a written statement of decision and reasons within 14 days of the date of the oral decision. That letter was sent on 24 August 2018. The applicant did not send a request for a written statement of decision and reasons within the prescribed time frame. He next contacted the Tribunal on 26 September 2018 and did not formally apply for a written statement of decision and reasons until 15 October 2018. On 17 October 2018, the applicant applied for judicial review of the Tribunal's decision. The application for judicial review was filed 20 days outside of the 35 day time limit prescribed by s 477(1) of the Migration Act 1958 (Cth) (the Act). The applicant sought an extension of time in which to file his application for judicial review. The Minister opposes the application. This judgment is only concerned with the extension of time application. It raises the following the issues. First, does the applicant have an adequate explanation for the delay and secondly, is the judicial review application reasonably arguable? Section 477(2) of the Act provides that the Court may extend the 35 day period provided by s 477(1) as the Court considers appropriate if there has been an application made in writing (and there has in this case) and the Court is satisfied it is necessary in the interests of the administration of justice to make an order extending time. The factors which may be considered in the context of an extension of time application are not closed. The term "necessary in the interests of the administration of justice” is broad, as is the discretion inherent in that phrase. As a consequence, there are a range of permissible considerations relevant to the exercise of the discretion. It is a matter for the judge hearing the extension of time application to determine which of that range of considerations make it necessary for the grant of an extension of time in a particular case: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 276 CLR 579; [2022] HCA 28 at [12]-[13], per Kiefel CJ, Gageler, Keane and Gleeson JJ; and [39]-[40], per Gordon, Edelman and Steward JJ.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The 14 day period expired on the 6 September 2018. The letter also attached a document ‘MR25 Information about decisions - MR Division’. This document was not included in the court book but was annexed to a subsequent affidavit filed by the Minister (tendered and marked R2). It relevantly stated the following:Review of decisionsApplicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time. That document also outlined information concerning bridging visas, including that the applicant's bridging visa would cease 35 days after the decision was made. It also advised that if the applicant decided to seek judicial review of the affirmed decision, he may be eligible for a bridging visa that would keep his immigration status lawful throughout the process. It also advised the applicant should apply for another bridging visa before the current bridging visa ceased. This letter was sent via email to the email address last confirmed by the applicant on 5 April 2018, when he provided a change of contact details form to the Tribunal. It was also the email that was provided by the applicant with his review application. It was used by the Tribunal to send the applicant letters on 11 April 2017, 6 March, 5 and 30 April and 8 and 9 May 2018. The applicant sent email replies to the Tribunal's 5 April 2018 email on 4, 5 and 6 April 2018. The applicant sent an email to the Tribunal, replying to the Tribunal's 9 May 2018 email on 22 August 2018. The applicant emailed the Tribunal on 26 September 2018 to check on his visa application status, as his attached VEVO stated his bridging visa was expiring on 27 September 2018, but he “never received any black and white letter or e-mail” to inform him whether his status was refused or accepted. He requested to be furnished “with black and white documentation” relating to his current visa to enable him to take further action required by the Department of Immigration and Border Protection, the Tribunal and the Department of Home Affairs. On 27 September 2018, the Tribunal wrote back to the applicant in the following terms:The Tribunal has made a decision on your review application and the outcome of this decision was notified to you by email.Please be aware that the Tribunal has now exercised its jurisdiction in relation to your review application.In terms of your visa and visa status, please approach the Department of Home Affairs.You may want to consider seeking professional help from a Registered Migration Agent or an Immigration lawyer in relation to your options now that the Tribunal has confirmed dismissal of your review application.The Tribunal did not address the applicant’s apparent request for a written statement of decision and reasons.
Ratio Decidendi
Legal Principle Established
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