GCU18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 229
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GCU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 229
File number: MLG 3559 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 24 March 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time application – lengthy delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 425, 425A, 426A, 441A, 441C & 477
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20
Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sharma v Minister for Immigration & Anor [2018] FCCA 1382
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZOVP v Minister for Immigration and Citizenship (No 2) [2011] FMCA 442
SZQFS v Minister for Immigration & Citizenship [2011] FCA 1244
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WZARX v Minister for Immigration & Border Protection [2014] FCA 423
Division: Division 2 General Federal Law Number of paragraphs: 96 Date of hearing: 15 March 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms S Liddy Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 3559 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GCU18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
24 MARCH 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) (as amended on 15 March 2023) be dismissed.
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 KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 14 & 38-61). He first arrived in Australia in September 2016 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 65).
On 17 October 2016, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-37). With his application, the applicant provided a copy of his Malaysian passport (CB 38-61).
On 9 March 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 65-79). The delegate found the applicant’s claims to be “vague and lacking in detail”. Further, the delegate determined that the applicant would be able to seek protection from the relevant authorities if he returned to Malaysia (CB 66-67 & 73).
On 3 April 2017, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 80-81). In that application, the applicant provided the Tribunal with a postal address and an email address (under the “[c]orrespondence details” section of the application form) (CB 81).
On 9 August 2017, the Tribunal invited the applicant (via email) to attend a hearing before it on 29 August 2017 at 9.30am (VIC time) (CB 85-87).
On 15 August 2017, the applicant provided the Tribunal with a completed response to hearing invitation form (via email) (CB 88-91). In that form, the applicant indicated that he would take part in the scheduled hearing. He also requested an interpreter in the Bahasa Malaysian language (CB 89).
On 27 August 2017, the applicant wrote to the Tribunal (via email) and asked that the Tribunal adjourn the hearing on “health grounds” (CB 92-93). The correspondence from the applicant stated (without alteration) (CB 92):
I wish to make an application to change the date of the meeting for the hearing that was supposed to take place on 29 August 2017. this is because of my health that does not permit. I have a hot fever for 3 days. I request from you to consider and set another date For my hearing, please ask your side to consider my application.
On 28 August 2017, the Tribunal replied to the applicant (via email), requesting medical evidence in support of his adjournment request. Relevantly, the email correspondence from the Tribunal provided (CB 94):
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
Thank you for your email to the Tribunal dated 28 August 2017 requesting a hearing postponement for a hearing dated 29 August 2017 at 9:30am. The presiding Member has indicated that the Tribunal requires detailed medical evidence in support of your absence for the scheduled hearing. This information needs to be provided to the tribunal as soon as possible in order for the member to re-consider your request.
If you have any questions please contact us immediately at [email protected], or call 1800 228 333.
No medical evidence was provided by or on behalf of the applicant.
The applicant did not attend the hearing scheduled for 29 August 2017 (CB 96-98).
On 31 August 2017, the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) (the “Non-Appearance Decision”) (CB 102-103). The applicant was notified of that decision (and advised of his right to apply for reinstatement) by letter sent that same day via email (being on 31 August 2017) (CB 99-101). That letter stated (CB 100):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 14 September 2017. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
Attached to the Tribunal’s correspondence was an information sheet which also included detailed information about how the applicant could seek reinstatement of his application (CB 104-105).
The applicant did not seek reinstatement.
On 19 September 2017, the Tribunal confirmed the Non-Appearance Decision made on 31 August 2017 (the “Confirmation Decision”) (CB 108-109). By virtue of s 426A(1F) of the Act, the delegate’s decision was taken to be affirmed.
On 26 November 2018, the applicant applied to this Court for judicial review of the Tribunal’s Confirmation Decision. Unfortunately, that application was filed outside of the 35-day time limit specified in s 477 of the Act. Accordingly, the applicant requires an extension of time to pursue the substantive proceeding in this Court.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court has determined that an extension of time should not be granted.
CONSIDERATION
The materials before the Court include the application for an extension of time and supporting affidavit, both filed by the applicant on 26 November 2018, a court book numbering 111 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 28 February 2023 and an affidavit of service of Tareena Martin affirmed on 7 March 2023 (and filed in this Court on 8 March 2023).
The Court notes that on 1 October 2020, procedural orders were made by Registrar Carlton of the then Federal Circuit Court of Australia (the “FCCA”), giving the applicant an opportunity to file an amended application, any affidavits or a supplementary court book and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared before this Court without legal representation. At the applicant’s request, an interpreter in the Malay language was made available to assist the applicant at that hearing. Ultimately, the applicant opted not to use the interpreter and chose to proceed in English. No issues arose in this regard and the Court is satisfied that the applicant was able to effectively participate in the hearing before this Court.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The Court noted that the applicant had not sought review of the Non-Appearance Decision. Rather, he had only asked for a review of the Confirmation Decision. The Court explained to the applicant why this was an issue and, with his consent (and that of Ms Liddy, solicitor for the Minister), the Court made an order amending the application for judicial review to include the seeking of a review of the Non-Appearance Decision.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decisions. It was noted further that, in this matter, the Tribunal’s Non-Appearance and Confirmation Decisions are dated 31 August 2017 and 19 September 2017 respectively. The dates by which the applicant was required to file his application in this Court were 5 October 2017 (in relation to the Non-Appearance Decision) and 24 October 2017 (in relation to the Confirmation Decision). Unfortunately, the applicant did not file his substantive application in this Court until 26 November 2018. Hence, the delays here are 417 days in relation to the Non-Appearance Decision and 398 days in relation to the Confirmation Decision.
The Court explained that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided a “ground” explaining why he believes that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting, again, that the applicant appeared without any legal assistance, the Court outlined to him that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that, when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error.
The Court invited the applicant to address each of the factors outlined above and highlight anything that he considered relevant to his request for an extension of time. The applicant’s responses are discussed in the consideration that follows.
Length of delay
The Court notes that an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As outlined above (at [22]), the delays in this matter are 417 days in relation to the Non-Appearance Decision and 398 days in relation to the Confirmation Decision.
In either instance, this is an extraordinary delay (of well over a year) and weighs heavily against the granting of an extension of time.
Prejudice
In both written and oral submissions before this Court, the Minister conceded that there is no prejudice to the Minister beyond the public interest in the finality of administrative decision making: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67.
This weighs in favour of granting the extension of time.
Explanation
The longer the delay in question, the more satisfactory the explanation for that delay needs to be: Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 (“Manna”) at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
In the application filed by the applicant, the applicant provides one “ground” for the extension of time which relevantly provides (without alteration):
1.The interests of justice favour the extension of time for the reasons set out in the affidavit of [the applicant] dated 23 November 2018.
The affidavit filed by the applicant further provides:
4. The Tribunal asked me to a hearing to discuss my case on 31 August 2017.
5.On 27 August 2017, I emailed the Tribunal to say that I had a fever for the past three days and I could not come to the hearing. At the time I was living in Mildura and it was very far away from Melbourne.
6.The Tribunal wrote an email to me on 28 August 2017 and told me that the hearing could not be put off unless I had some hospital records of my illness. I did not fully understand what it said, but as I did not have Medicare or any money at that time I knew I could not get any hospital records. I thought it was hopeless.
7.The Tribunal did not put off the hearing but I could not go on the day as I was still sick.
8.On 31 August 2017, the Tribunal wrote to me dismissing my application for review. Now shown to me and marked “[Applicant’s initials]” is a copy of that decision.
9.Then on 19 September 2017, the Tribunal wrote to me again confirming the dismissal of my application.
10.From then, I thought my case was hopeless and I did not know what to do. I did not have any money to be able to afford a lawyer. The first time I saw a lawyer was when I was put in touch with the National Union of Workers free legal service. I was given an appointment with them on 23 November 2018. In that appointment they helped me to prepare this application.
The applicant raised similar concerns to those outlined above in oral submissions to this Court (at the hearing on 15 March 2023). The applicant repeated that he “did not know what he should do” and that he did not have the resources to “pay a lawyer” to assist him. Further, the applicant told the Court that it was not until he was offered “free legal advice” (from National Union of Workers) that he was able to apply to this Court for review.
To the extent that the applicant claims that he was not “sure what to do”, the Court sympathises. Ignorance, however, is no excuse in matters of this sort. In that regard, the Court notes the comments made by the Federal Court in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, as follows:
38.In the present case, there is no satisfactory explanation for the delay. 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. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
Applicants seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. The applicant does not appear to have done that in this matter. There is no evidence, for example, that the applicant sought assistance from the Court or the Tribunal in relation to what was required of him.
Further, the Court notes that the Tribunal provided the applicant with an information sheet when notifying him of the Tribunal’s Confirmation Decision (CB 110-111). This was sent to the applicant via email on 20 September 2017 and relevantly provided:
What happens if we confirm the dismissal?
If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department's decision remains in force.
If you think that our decision is wrong in law, you may consider seeking judicial review in the Federal Circuit Court of Australia. If you wish to apply for review, you must do so within 35 days of the date of our decision.
If you hold a bridging visa associated with the application that was the subject of our review, your bridging visa will cease either:
•35 days after our decision is made (if your bridging visa was granted on or after 19 November 2016); or
•28 days after you are notified of our decision.
The applicant was thus on notice that that an application for review would need to be filed in the then FCCA within 35 days of the Tribunal’s Confirmation Decision.
Turning to the claim that the applicant did not file his application for judicial review because he could not afford to pay a lawyer, the Court is, of course, sympathetic to the plight of all applicants who appear before this Court in similar circumstances. However, claimed impecuniosity is not an acceptable explanation for failing to lodge a judicial review application within the requisite time period: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]–[26] per Barker J.
Further, the Court notes that there is no right to legal representation in migration proceedings: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099. Nor is a lack of legal representation a sufficient explanation alone for an extension of time: Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [27], [32] & [36]; Manna at [17].
There is also no evidence to suggest to this Court that the applicant contacted the Court registry to obtain assistance with filing an application or to discuss the issue of obtaining a waiver or reduction in filing fees or to seek any advice or assistance in this regard.
The Court does not consider that the explanation provided by the applicant is satisfactory to justify such a lengthy delay.
This weighs against granting an extension of time.
Merits
Arguably, the most critical factor for consideration when determining whether the Court ought to grant an extension of time is whether the proposed application for judicial review has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, 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”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
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.
Noting that the applicant in this matter was unrepresented, the Court gave him an opportunity to elaborate on his substantive “grounds of review” (set out in the application for judicial review filed by the applicant) and to outline any other concerns that he might have in relation to the Tribunal’s decisions. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether there is an arguable case that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that he “knew that he had made a mistake by not attending the hearing” but that he was “ill for three days and had a fever at that time” which prevented him from doing so. The applicant accepted, in oral submissions to the Court, that the mistake was his and he told the Court that he “just hoped that the Tribunal would accept his application again”.
Unfortunately, the applicant’s oral submissions in this matter do not raise any issue of an “arguable case” of jurisdictional error or any issue of the sort that this Court can address.
The Tribunal’s decisions
In order to determine whether the proposed application for judicial review has “merit”, it is useful to first set out the Tribunal’s decisions.
The Non-Appearance Decision
The Non-Appearance Decision dated 31 August 2017 provides (CB 102-103):
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 31 August 2017. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant was about the hearing . The applicant requested via email on 29 August 2017 that the hearing be postponed for the following day as he had a fever. The Tribunal responded on 29 August indicating that the hearing would not be postponed unless the applicant could provide a medical certificate to the Tribunal. The tribunal did not hear back from the applicant. No satisfactory reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision
The Confirmation Decision dated 19 September 2017 provides (CB 108-109):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 31 August 2017 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.4268(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
6. The Tribunal confirms the decision to dismiss the application.
Proposed application for judicial review
The application for judicial review filed by the applicant on 26 November 2018 contains one particularised proposed ground of review as follows (without alteration):
1.The Tribunal’s decision to confirm the dismissal of the applicant’s application for review pursuant to s 426B(5) of the Migration Act 1958 (the Act), as it was based on a previously erroneous exercise of s 426A(1A)(b) of the Act.
Particulars
1.1On 31 August 2017, the Tribunal wrote to the applicant inviting him to attend a hearing in respect of his application for review.
1.2On 27 August 2017, the review applicant wrote an email to the Tribunal, requesting that the review be adjourned as his health did not permit and he had a ‘hot fever for 3 days’;
1.3On 29 August 2017, the Tribunal responded to the review applicant by email stating that ‘the Tribunal requires detailed medical evidence in support of your absence for the scheduled hearing’
1.4The applicant did not appear before the Tribunal on the date of the hearing;
1.5On 31 August 2017, being the date of the scheduled review hearing, the Tribunal issued a decision under s 426A(lA)(b) of the Act, dismissing the application for review;
1.6The Tribunal’s decision to exercise its power under s 426A(1A)(b) was unreasonable, in circumstances where:
1.6.1Information on the Tribunal’s file indicated that the applicant was unrepresented in relation to the review;
1.6.2Information provided with the review application indicated that the review applicant had requested the assistance of a Malay interpreter to communicate with the Tribunal and an interpreter had not been used and;
1.6.3The review applicant had written to the Tribunal in advance of the review hearing to indicate that he would not be in a position to attend.
1.7Further, or in the alternative, the Tribunal acted unreasonably, by failing to either consider or exercise its power under s 427(1)(b) to adjourn the review.
Having reviewed the applicant’s grounds of review as broadly as possible (as per MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391), the Court will assess the following potential issues:
(a)whether the Tribunal’s decision to dismiss the application (pursuant to s 426A(1A)(b) of the Act) was unreasonable;
(b)whether the Tribunal decision not to grant the applicant an adjournment on medical grounds was unreasonable; and
(c)whether the Tribunal’s decision was unreasonable because the applicant was unrepresented and an interpreter was not used.
Whether the Tribunal’s decision to dismiss the application (pursuant to s 426A(1A)(b) of the Act) was unreasonable
As outlined by this Court in ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744, before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (under s 425 of the Act) to appear before it. Further, ss 425 and 425A of the Act are to be read together: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]. That is, if s 425A of the Act has not been complied with, a valid hearing invitation has not been sent and the Tribunal’s powers under s 426A of the Act will not be enlivened.
In this regard, the Court notes that the Tribunal is required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act, which provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The Tribunal here invited the applicant to attend a hearing before it by way of letter dated 9 August 2017. That letter was sent to the applicant via email that same day (being on 9 August 2017) (CB 85-87).
Section 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provides:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
Here, the invitation to attend the hearing:
(a)was addressed to the applicant (CB 86);
(b)clearly indicated the date, time and means by which the applicant could attend that hearing (being on 29 August 2017 at 9.30am (VIC time) and noting that the hearing would take place at the Melbourne registry of the Tribunal) (CB 86): s 425A(1) of the Act;
(c)was sent to the applicant via email (a method approved by s 441A(5)(b) of the Act) to the applicant’s nominated email address on 9 August 2017 (CB 85): s 425A(2)(a) of the Act;
(d)was given to the applicant 20 days prior to the scheduled hearing, exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (being 14 days after the day the person receives the notice): s 425A(3) of the Act; and
(e)contained a statement describing the effect of s 426A of the Act and explained what would happen if the applicant did not attend the hearing (CB 87): s 425A(4) of the Act.
For completeness, the Court notes that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter where the invitation was sent via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case at the end of the day it was transmitted), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].
Further, the applicant confirmed receipt of that hearing invitation by initially responding to the Tribunal (on 15 August 2017) and confirming his attendance by returning a completed “response to hearing invitation” form to the Tribunal (via email) (CB 88-91).
The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act and that the applicant was properly invited to attend the hearing.
Having been properly invited to attend a hearing, and having failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section provides:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
The applicant did not attend the Tribunal hearing scheduled to take place on 29 August 2017 (CB 96-98).
In those circumstances, the Tribunal could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or dismiss the application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
Here, the Tribunal chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The decision to exercise a discretionary power must be made “reasonably”. Within the context of this matter, the Court is satisfied that the Tribunal’s actions were reasonable. Relevantly:
(a)the applicant sought an adjournment via email on 27 August 2017 (at 9.25pm) on health or medical grounds (without any supporting materials, for example, a medical certificate) (CB 92-93);
(b)the Tribunal replied to the applicant on 28 August 2017 (at 12.16pm) requesting detailed medical evidence in support of that request (CB 94);
(c)the Tribunal also sent an SMS hearing reminder message to the applicant earlier that day (at 11.01am on 28 August 2017) (CB 95);
(d)the applicant did not provide any medical evidence to the Tribunal (either before or at any time following the scheduled hearing) (CB 102);
(e)the applicant did not appear at the hearing at the scheduled time of 9.30am (on 29 August 2017) (CB 96-98);
(f)
the Tribunal waited until 1.28pm on 31 August 2017 before making its
Non-Appearance Decision; and
(g)the applicant made no further attempts to contact the Tribunal (after his email dated 27 August 2017 requesting the hearing adjournment).
On the basis of the above, the Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicant’s application pursuant to s 426A(1A)(b) of the Act.
No arguable case of error arises in this regard.
Whether the Tribunal decision not to grant the applicant an adjournment on medical grounds was unreasonable
As outlined above, on 27 August 2017, the applicant requested that the Tribunal adjourn the hearing scheduled before it on 29 August 2017 on health or medical grounds (CB 92-93). The email correspondence from the applicant stated (without alteration) (CB 92):
I wish to make an application to change the date of the meeting for the hearing that was supposed to take place on 29 August 2017. this is because of my health that does not permit. I have a hot fever for 3 days. I request from you to consider and set another date For my hearing, please ask your side to consider my application.
The Tribunal considered the applicant’s request for an adjournment and, on 28 August 2017, the Tribunal replied to the applicant and requested that he provide “detailed medical evidence” in support of his adjournment request. Relevantly, the email correspondence from the Tribunal provided (CB 94):
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
Thank you for your email to the Tribunal dated 28 August 2017 requesting a hearing postponement for a hearing dated 29 August 2017 at 9:30am. The presiding Member has indicated that the Tribunal requires detailed medical evidence in support of your absence for the scheduled hearing. This information needs to be provided to the tribunal as soon as possible in order for the member to re-consider your request.
If you have any questions please contact us immediately at [email protected], or call 1800 228 333.
No medical evidence or any further correspondence was provided to the Tribunal by or on behalf of the applicant.
The applicant did not attend the hearing scheduled on 29 August 2017 (CB 96-98).
Without any medical evidence before it (or any additional information from the applicant in response to the Tribunal’s correspondence outlined above), the Tribunal determined that “[n]o satisfactory reason for the [applicant’s] non-appearance ha[d] been given” (at [2] of the Non-Appearance Decision, CB 102).
As correctly submitted by the Minister (at [8]) in written submissions filed in this Court on 28 February 2023), where an applicant is unfit and unable to give evidence on account of a medical condition, such that the invitation under and process contemplated by s 425 of the Act has been subverted, a breach of s 425 of the Act may occur. However, an applicant who has an impairment which does not render them “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to have been denied a “real and meaningful” opportunity to participate in the hearing. It must therefore be demonstrated that the applicant was unfit, in the sense of being unable, to give evidence, present arguments and answer questions in the course of the hearing: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]-[34]; SZOVP v Minister for Immigration and Citizenship (No 2) [2011] FMCA 442 at [48].
On the basis of the evidence that was before the Tribunal (or lack thereof), the Court considers that it was open to the Tribunal to refuse to grant the applicant the adjournment.
In particular, the Court notes that no medical evidence or supporting material was provided to the Tribunal with the request for the adjournment. Further, no response was provided to the Tribunal’s request for detailed medical evidence in the three days between that request and the Tribunal making its Non-Appearance Decision (that is, between 28 August 2017 and 31 August 2017).
In circumstances where the applicant provided no further evidence to indicate that he was unable to participate in a hearing before the Tribunal, and where the Tribunal had nothing but an email from the applicant which simply stated that his “health … [did] not permit” his attendance and that he had “a hot fever for 3 days”, the Court considers that the decision to refuse to grant an adjournment was not unreasonable.
No arguable case of error arises in this regard.
Whether the Tribunal’s decision was unreasonable because the applicant was unrepresented and an interpreter was not used
To the extent that the applicant suggests that the Tribunal acted unreasonably because the applicant was unrepresented or because an interpreter had not been used, the Court disagrees.
In relation to the provision of an interpreter, there was no obligation on the Tribunal to provide the applicant with any assistance from an interpreter prior to the Tribunal hearing. While not obliged to do so, the Tribunal did, however, provide the applicant with information in relation to interpreting services in its hearing invitation letter. Relevantly, that correspondence stated (emphasis added) (CB 87):
If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
Similar statements were included in the Tribunal’s cover letters providing the applicant with copies of the Non-Appearance and Confirmation Decisions (CB 100 & 107).
The Tribunal also made an interpreter available for the applicant at the Tribunal hearing scheduled to take place on 29 August 2017 (CB 96). The applicant did not attend that hearing.
Further, the applicant appeared to be able to understand the hearing invitation (or had means to have that invitation translated for him) as he understood the date of the hearing and submitted a request for an adjournment to the Tribunal.
In relation to the fact that the applicant was unrepresented, the Court notes that there is no right to legal representation before the Tribunal: WZARX v Minister for Immigration & Border Protection [2014] FCA 423 at [14]; SZQFS v Minister for Immigration & Citizenship [2011] FCA 1244 at [30]-[31]; Sharma v Minister for Immigration & Anor [2018] FCCA 1382 at [18].
It was also open to the applicant to seek the assistance of a migration agent or legal representative but it does not appear that he did so. This was a matter for the applicant and the Tribunal was under no obligation to provide the applicant with, or to facilitate the applicant obtaining, any legal assistance.
No arguable case of error arises in this regard.
Conclusion regarding merits of the substantive application
In this matter, assessed at a reasonably impressionistic level, the applicant’s “ground of review” does not identify any arguable case of jurisdictional error on the part of the Tribunal. Further, the Court has itself been unable to identify any arguable grounds of error of the sort that this Court can address.
This weighs heavily against granting an extension of time.
CONCLUSION
The extraordinary delay in filing and the lack of both a satisfactory explanation for that delay and an arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level only) are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time (as amended on 15 March 2023) is, accordingly, dismissed.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 March 2023
2
35
0