FYR18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 149
•12 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FYR18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 149
File number: MLG 3458 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 12 February 2025 Catchwords: MIGRATION – Protection visa – Application for an extension of time to commence judicial review proceeding – Where the Tribunal sent communications about its hearing to Applicant’s last provided email address in compliance with its statutory obligations – Where the Applicant failed to attend at the hearing before the Tribunal on the scheduled date – Where the Applicant filed the judicial review application some 393 days out of time – Where the underlying application has little or no prospects of success – Application for extension of time dismissed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r. 29.05
Migration Act 1958 (Cth) ss. 425, 425A, 426A, 441A, 477
Cases cited: Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176
Minister for Home Affairs v DUA16 (2020) 271 CLR 550, [2020] HCA 16
Minister for Immigration v SZVFW (2018) 264 CLR 541; [2018] HCA 30
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submissions: 30 January 2025 Date of hearing: 30 January 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Ms Kristina Petrovski of Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3458 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FYR18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
12 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the Minister is amended to read Minister for Immigration and Multicultural Affairs.
2.The application for an extension of time is dismissed.
3.The Applicant pay the First Respondent's costs fixed in the amount of $4,189.38.
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 CHAMPION:
INTRODUCTION
The Applicant, by an application made on 15 November 2018, seeks an extension of time to seek judicial review of a decision of the Tribunal made on 13 September 2017 affirming a decision of the delegate to refuse her a protection visa.
SUMMARY
In this matter, it is not necessary in the interests of the administration of justice to extend time. I will dismiss the application for an extension of time My reasons follow.
BACKGROUND
In June 2016 the Applicant arrived in Australia from Malaysia.
In September 2016, she applied for a protection visa on the basis that her husband had been targeted by loan sharks due to a debt he owed to them.
A delegate of the Minister having refused the visa, the Applicant applied to the Tribunal for a review of the delegate's decision. The Applicant nominated an email address for communications with her as to her Tribunal application. Because this is a protection visa application, it is not appropriate to disclose the email address in full in these reasons other than to note it ended as follows “… [email protected]”. It is apparent that the Applicant received communications from the Tribunal sent to that email address. The Applicant responded to the Tribunal's information requests by emails sent from that email address.
The Tribunal sent the Applicant an email to the email address she had nominated (… [email protected]) inviting her to attend a hearing. Even though the Tribunal had sent the invitation, the Applicant did not attend at the hearing before the Tribunal on the scheduled date.
THE STATUTORY SCHEME IF AN APPLICANT DOES NOT APPEAR AT THE TRIBUNAL HEARING
In circumstances of the Applicant's non-appearance on 29 August 2017 at the Tribunal hearing, the Tribunal made a decision to dismiss her application under s. 426A(1A)(b) of the Migration Act 1958 (Cth).
Section 426A(1) of the Act provides that if an applicant is invited under s. 425 to appear before the Tribunal and does not appear, under s. 426A(1A)(b) the Tribunal may "by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal."
Section 426A(1B) provides that if the Tribunal dismisses the application, the applicant may, within 14 days after receiving the notice of the decision, apply to the Tribunal for the reinstatement of the application. The Tribunal notified the Applicant of its decision to dismiss her application under s. 426A(1A)(b). On the same day, the Tribunal advised her that she could apply for reinstatement of her application. The Applicant did not apply for reinstatement of her application within 14 days after receiving notice of its dismissal under s. 426A(1B). Section 426A(1E) provides that:
If the applicant fails to apply for reinstatement within the 14 day period mentioned in subsection (1B), the tribunal must confirm the decision to dismiss the application by written statement under section 430.
In this case, on 13 September 2017, the Tribunal confirmed - as s. 426A(1E) said it “must” do - its original decision to dismiss the application. The Applicant seeks an extension of time to seek judicial review of the Tribunal’s decisions to dismiss her application made on 29 August 2017 under s. 426A(1B) and its decision on 13 September 2017 under s. 426A(1E) when it confirmed its decision to dismiss the application when the Applicant did not apply to reinstate her application.
SHOULD I GRANT AN EXTENSION OF TIME?
Legislation and principles as to an extension of time
Under section 477(2) of Act, I will grant an extension of time if I consider “that it is necessary in the interests of the administration of justice”. I may extend time if it is “needed” – not just desirable – in the interests of justice. As the plurality in the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] 276 CLR 579; [2022] HCA 28 at [12] noted: “there are no mandatory considerations”. In Tu'uta Katoa, the plurality held:
So framed, 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. 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.
I may, as appropriate, confine my considerations to the merits of the underlying application to an "impressionistic" assessment or consider the merits in greater depth because, as the plurality of the High Court said in Tu'uta Katoa at [19], I may have regard to the merits in "such manner as appropriate in the circumstances".
I turn now to the various factors The High Court plurality referred to in Tu'uta Katoa,: including the length of the delay, the reasons for the delay, prejudice to the respondent and the merits of the underlying application in the exercise of the discretion to extend time.
Length of the delay
The Applicant initiated her judicial review application on 15 November 2018, some 393 days after the expiry of the 35-day period set out in s. 477(1) of the Act. The delay is long.
An explanation for delay
The Applicant did not file any affidavit setting out evidence explaining her delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension, even though r. 29.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) provided for her to do so.
The Applicant submitted to me that she was unaware of the decision of the Tribunal dismissing her application, or of its subsequent decision confirming its dismissal of her application.
She did not know of any time limits for the making of a judicial review application. As Foster J said in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]:
Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay.
As to any reasonable explanation for delay, the Applicant said that she had provided funds to a representative to bring her application “but they cheated me”. I note that there was no evidence as the identity of her representative, instructions to him or her or the provision of funds to him or her or evidence as to how the Applicant alleged her representative had cheated her. In the absence of evidence, I cannot give this explanation any weight.
The Applicant has not provided any satisfactory explanation for delay.
Prejudice
The Minister does not claim it suffers any prejudice if an extension of time were granted beyond a general public interest in the finality of litigation. The mere absence of prejudice is not a sufficient basis to warrant the grant of an extension of time (Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176 at [21]).
The merits of the underlying application
I next turn to consider the merits of the judicial review application as far as is necessary on the application to extend time. The Applicant's underlying application filed in court on 15 November 2018 sets out, in narrative form, seven grounds for her application.
The Applicant did not allege error
I note the following. The Applicant was self-represented before me and appeared with the assistance of an interpreter. That circumstance creates a real challenge for a self-represented litigant whose task is to prove the Tribunal made a jurisdictional error or arguable jurisdictional error such that the time for the commencement of an application should be extended.
In her oral submissions, the Applicant did not allege that the Tribunal had made an error. When asked to explain why she believed the Tribunal had made a serious legal error by way of dismissing her application, the Applicant said that the fault lay with her, not the Tribunal (T9:L45-T10:L1):
They haven’t done anything wrong…I have made mistakes. For that, I am asking apology.
The Tribunal communicated with the email address the applicant herself nominated (Ground 1)
Ground 1 of her proposed written grounds includes a statement that due to the Tribunal “not having my correct email address … I did not receive any communication and my application was dismissed”. I have already noted that the evidence was that the Tribunal communicated with the email address the Applicant herself provided and that the applicant sent emails from the same email address. I am satisfied that the Tribunal’s communications to the Applicant inviting her to attend a hearing, the notification of the dismissal decision, and notification of the confirmation decision were all sent to the email address which the Applicant herself nominated as her email address for Tribunal communications with her. Ground 1 lacks sufficient merit to warrant an extension of time.
There is no evidence that the Applicant sought reinstatement of her dismissed application under s. 426A(1B) (Ground 2)
Ground 2 is as follows:
I made a request for my application to be reinstated. However, AAT has claimed that a reinstatement request was never made, and my decision was to dismiss my application.
(As written)
There is no evidence that the Applicant made any request for a reinstatement of her application under s. 426A(1B) of the Act within 14 days of the dismissal of her application. Ground 2 does not have sufficient merit to warrant the grant of an extension of time.
Ground 3 is as follows:
First AAT has made an error in law when they claimed that I did not make a request for my application to be re-instated. I have made this request through a migration agent and I was advised that AAT has refused to accept my request and my request was refused. As far as I was aware my request was refused by AAT. This is clear error in law made by AAT not to accept my request when a valid request was made within 14 days from the date of decision.
(As written)
There was no evidence of the Applicant making any request for reinstatement by a migration agent. There is no evidence before me that any action of an unnamed migration agent “stultified the legislative scheme to afford natural justice” to the Applicant (Minister for Home Affairs v DUA16 (2020) 271 CLR 550, [2020] HCA 16, [14]).
Ground 3 does not warrant an extension of time.
The Tribunal complied with its statutory obligations in notifying the Applicant of its hearing
Grounds 4 and 5 are as follows:
4. …AAT failed on their duty of care to make sure review application has received the invitation so the hearing could go ahead and review with the applicant present for her matter before the member.
And the:
5. …AAT has not made enough efforts to contact me so that I could be present at the hearing.
(As written)
I do not accept that the Tribunal's attempts to notify the Applicant of the hearing were insufficient.
The Tribunal complied with the statutory procedure as to notifications to the Applicant. The Tribunal sent a hearing invitation in accordance with s. 425 and s. 441A(5) of the Act. The Tribunal’s invitation complied with the requirements of s. 425A of the Act. It contained a statement of the effect of s. 426A that if the Applicant failed to appear before the Tribunal, the Tribunal may make a decision on the review or dismiss the proceeding without any further consideration of the application or information before the Tribunal. The Applicant did not, before me, point to any failure on behalf of the Tribunal to comply with the statute as to the notifications or communications to her. As Gageler J (as his Honour then was) said in Minister for Immigration v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [69]:
Where the Tribunal is satisfied that the statutory procedure contemplated by section 425 for inviting the applicant for review to appear before it has been followed, and where the applicant without explanation fails to appear… ordinarily, it could not later be said on judicial review that “no sensible [Tribunal] acting with due appreciation of its responsibilities” could have taken that course.
So, in this case, I do not find that the Tribunal acted in a way which was unreasonable in the legal sense by proceeding to dismiss the proceedings on the Applicant's non-appearance "without any further consideration of the application or information before it" under s. 426A(1A)(b) of the Act in circumstances in which the Tribunal had complied with the statutory procedure and the statute expressly contemplated that it proceed in that way.
Although the Tribunal’s compliance with the required statutory procedure is sufficient to conclude that there was no jurisdictional error, and it is therefore strictly unnecessary to say more, in addition to complying with its statutory obligations, the Tribunal did more than the statute required by sending two SMS hearing reminders about the hearing to the Applicant's mobile telephone.
It was not unreasonable for the Tribunal not to consider the underlying merits of the application when the Tribunal had an express statutory power to proceed as it did
The Applicant makes a complaint that the Tribunal did not consider the underlying merits of her application for a protection visa. It was not legally unreasonable for the Tribunal to dismiss her application "without any further consideration of the application or information" — that is, without consideration of its underlying merits — because it had an express statutory power to adopt the course it did under s. 426A(1A)(b).
Grounds 4 and 5 do not warrant the grant of an extension of time.
The court cannot proceed by reference to a generalised concept of fairness
Finally, I note that Grounds 6 and 7 of the proposed grounds of review do not point to any jurisdictional error that would warrant the grant of an extension of time. Grounds 6 and 7 have the character of a plea to the court for “fairness”.
My powers are confined to circumstances of the Applicant proving jurisdictional error. I cannot act in accordance with any general notion or personal conception of fairness.
CONCLUSION
In all of the circumstances including the length of the delay, the lack of a satisfactory explanation for the delay and the fact that the proposed grounds of review lack sufficient merit to warrant an extension of time, I decline to grant an extension of time.
I will dismiss the application for an extension of time. I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $4,189.38.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 12 February 2025
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