GDY18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 450
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GDY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 450
File number(s): MLG 3590 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 31 May 2023 Catchwords: MIGRATION – extension of time application – applicant filed 436 days out of time – applicant did not attend hearing before Tribunal – applicant did not apply for reinstatement before Tribunal – found no reasonable explanation for delay – found grounds of substantive argument are not reasonably arguable – application dismissed. Legislation: Migration Act 1958 (Cth) ss 425, 425A, 426(1A)(b), 426A(1A)(b), (1E), 426B(5), 441A(5), 441C(5), 445A(5), 445C(5), 476A(3)(a), 477(1) and (2).
Migration Regulations 1994 (Cth) reg 4.35D(3).
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Dunsmuir v New Brunswick [2008] 1 SCR 190
EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439
Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
Somjjich v Minister for Home Affairs [2019] FCA 1921; (2019) 168 ALD 219
SZGWH v Minister for Immigration and Citizenship [2007] FCA 543
SZHVM v Minister for Immigration and Citizenship [2008] FCA 600
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration & Border Protection [2014] FCA 533
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 16 May 2023 Place: Melbourne Counsel for the Applicant: Self-represented litigant Counsel for the First Respondent: Ms Meaney of Mills Oakley Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 3590 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GDY18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
31 May 2023
THE COURT ORDERS THAT:
1.The Application filed 28 November 2018 be dismissed.
2.The applicant pay the costs of the first respondent fixed in the sum 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 J YOUNG:
IN SUMMARY
Before the Court is an Application filed on 28 November 2018 for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek a judicial review of the decision of the second respondent (Tribunal) dated 14 August 2017 confirming its decision to dismiss an application under s 426(1A)(b) of the Act.
The Application was filed 436 days after the expiry of the statutory timeframe. Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the Application is dismissed. The reasons for this decision follow.
CONTEXT
The applicant is a citizen of Malaysia.
On 7 December 2015 the applicant entered into Australia on a Visitor visa.
On 3 February 2016 the applicant applied for a Protection (Subclass 866) visa (visa).
On 18 April 2016 a delegate of the first respondent (delegate) refused to grant the visa.
On 8 May 2016, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant provided the email address “[email protected]” (applicant’s email address), and the mobile number “xxxxx xxx76” (applicant’s mobile) in the application for review.
On 5 July 2017, the Tribunal emailed the applicant inviting him to attend an in-person hearing on 28 July 2017 at 9.30am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant did not respond to the hearing invitation.
On 21 and 27 July 2017, the Tribunal sent SMS hearing reminders to the applicant’s mobile.
The applicant did not attend the hearing on 28 July 2017. Pursuant to s 426(1A)(b) of the Act, the Tribunal dismissed the Application for non-appearance (dismissal decision).
On that same day, 28 July 2017, the Tribunal sent a copy of the dismissal decision to the applicant’s email address. The notification letter sent with the dismissal decision informed the applicant that reinstatement of the application could be sought by 11 August 2017. The applicant was also provided with an information sheet entitled “information about dismissal of applications” which informed the applicant that if reinstatement was not sought within 14 days the Tribunal must confirm the decision to dismiss the application.
The applicant did not apply for reinstatement of the application and did not contact the Tribunal after being notified of the non-appearance decision.
On 14 August 2017 the Tribunal confirmed its original decision to dismiss the application (confirmation decision).
The Tribunal’s decision
Dismissal decision
The Tribunal found that the applicant was invited pursuant to s 425 of the Act to appear before it on 28 July 2017 at 9.30am but did not appear at the scheduled time and place. The Tribunal recorded that the hearing invitation stated that the Tribunal may dismiss the Application without further consideration of the Application or information before it if the applicant did not attend. The Tribunal outlined that the applicant had been sent two separate SMS reminders prior to the hearing.
The Tribunal found that the applicant did not attend the scheduled hearing and was satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) of the Act.
The Tribunal found that no reason for the non-appearance was given. The Tribunal dismissed the application without further consideration of the application or the information before it.
Confirmation decision
On 14 August 2017, the Tribunal found that the applicant had been notified of the dismissal decision and had been given a copy of the written statement and reasons in accordance with s 426B(5) of the Act. The applicant had been advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. The Tribunal found that as the applicant did not apply for reinstatement within the 14 day period it must confirm the decision to dismiss the application.
APPLICATION FOR AN EXTENSION OF TIME
Was the Application filed late?
Section 477(1) of the Act requires that an Application to this Court be made within 35 days of the date of the migration decision.
The Tribunal’s confirmation decision was made on 14 August 2017. An Application for judicial review of that decision in this Court was required to be filed by 18 September 2017. The Application for judicial review was not filed until 28 November 2018.
Accordingly, the Application was made 436 days after the expiry of the statutory timeframe.
Should the Court be satisfied to make an order extending time?
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an Application must be made if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.
The Act does not specify any criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.
The principles regarding an Application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”.[1] Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(1)the extent of the delay and explanation for it;
(2)any prejudice to the respondent if an extension were granted;
(3)the impact on the applicant if the time was not extended;
(4)the interests of the public at large; and
(5)the merits of the substantive Application.
[1]BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 [40]
In the Application filed 28 November 2018, the applicant stated the following with respect to why they say it is necessary in the interests of the administration of justice to extend time (without alteration):
The interests of justice favour the extension of time for the reasons set out in the affidavit of [the applicant] dated 26 November 2018
In the affidavit dated 26 November 2018, the applicant stated the following:
(3)I did not have enough English. I was living in Lindenow in the countryside. I did not understand what had happened in my case.
(4)There was a man named ‘Azmi’ who I knew through friends. He would help with people’s migration matters. He was the one who helped me to lodge my case in the Tribunal.
(5)I do not know what information he put on my Tribunal application. It is only now that I have my full files from the Department of Home Affairs that I can see that he put the wrong details on my application to the Tribunal. I can see that he put the email [[email protected]] to contact me. But that is not my name or my email address.
(6)The Tribunal asked me to a hearing to discuss my case on 28 July 2017. I did not receive that notification, and so I did not go to the hearing.
(9)Both of [the Tribunal’s decisions] were sent to the email [[email protected]]. I never received them and so I did not understand what was happening in my case.
(10)Only when I had not had any news about my visa for a long time that I began to think there might be something wrong in my case. I did not have enough money to see a lawyer about my case. I got in contact with the National Union of Workers free immigration law service. They helped me to apply for my files under Freedom of Information and then I realised what had gone wrong in my case. They then helped me to make this application.
Other than the affidavit dated 26 November 2018, nothing further was filed in support of the request for an extension of time.
At the hearing of this matter, the applicant was invited to elaborate and provided the following for the Court’s consideration:
(a)he has limited English;
(b)he had no friends to help him;
(c)he obtained assistance from a friend to make the application to the Tribunal for review;
(d)the friend included his own email address in the application rather than the applicant’s;
(e)he received a letter in 2017 requesting he pay the amount of $1900 however he does not know who the letter was from or what it refers to and he is not sure if it related to his immigration status.
With the exception of the latter matter, the further matters raised by the applicant repeat the matters contained in his affidavit.
Delay and explanation
The delay is of a significant period of time, being a period of 436 days. The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of long delay: Tran at [38].
The applicant has not offered a plausible or acceptable explanation for the delay in making this Application and this weighs against the granting of an extension of time.
Firstly, the material before the Court does not indicate that the applicant appointed a representative or authorised recipient before the Tribunal.
Secondly, pursuant to s 441A(5) the Tribunal is permitted to send correspondence to the last email address provided by the applicant to the Tribunal. Pursuant to s 445C(5) if the Tribunal gives a document to a person in accordance with s 445A(5) the person is taken to have received the document at the end of the day on which the document was transmitted.
Thirdly, whilst I accept that the applicant’s limited English language skills pose a challenge, that is a matter routinely encountered in immigration matters. It is the applicant’s responsibility to keep the Tribunal notified of their address for service: Somjjich v Minister for Home Affairs [2019] FCA 1921; (2019) 168 ALD 219 at [57].
Finally, as to the letter received by the applicant in 2017, its relevance, if any, to the matters before this Court is entirely unclear. It does not provide, or assist in providing, a plausible or acceptable explanation for the delay.
Prejudice
The first respondent properly did not contend it would suffer any particular prejudice (other than costs) if the applicant was granted an order allowing an extension of time.
However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
I assess this as a neutral consideration.
Public interest and impact on the applicant
There is a public interest in ensuring that decisions of the Executive are made lawfully. The merits of the substantive grounds relied upon by the applicant will of course be relevant to this, which are considered below.
It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].
As to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act the refusal of an explanation for an extension of time forecloses any right of appeal. MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, at [65].
I accept that a refusal to grant an extension of time would result in the applicant returning to their country of nationality which is a circumstance they say they fear and that this is a matter weighing in favour of the grant of an extension of time.
Merits of the substantive application
While the discretion of the Court is broad, the Court should not permit an Application to proceed if it is bound to fail, and should accordingly decline to extend time.
The substantive Application provides for a singular ground as follows (without amendment):
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 426(1A)(b) of the Act.
The particulars of that ground include the following:
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 contact details provided to the Tribunal were different from those provided by the applicant to the Department of Home Affairs, suggesting they may have been incorrectly recorded
(collectively, Ground 1)
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
(Ground 2).
At the hearing the applicant was invited to elaborate on these grounds but did not provide anything further for the consideration of the Court.
I am not persuaded that the grounds of the substantive application are reasonably arguable for the following reasons.
Ground 1
In Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57, CJ Mortimer said at [82]:
Legal unreasonableness involves a “necessarily stringent” test: SZVFW at [11] (Kiefel CJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [108] (Gageler J). It involves a conclusion by the Court on review that “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” the decision that was made, or exercised the power in the way it was exercised: SZVFW at [69] (Gageler J), citing Li at [71] (Hayne, Kiefel and Bell JJ), quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064.
Where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Minister for Immigration and Citizenship v Li [2013] HCA 18 at [105]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [44]-[45] (Singh). The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45]).
Firstly, as set out above, the material before the Court does not indicate that the applicant appointed a representative or authorised recipient before the Tribunal.
Secondly, in the dismissal decision the Tribunal said that the applicant had been properly notified of the hearing in accordance with s 441A(5), informed as to the consequence of failing to attend, sent SMS reminders about the hearing, did not appear at the hearing on the day and at the scheduled time and place and that no reason for non-appearance was given. The Tribunal invited the applicant to attend the hearing and that invitation complied with the requirements at s 425A of the Act. The invitation:
(a)gave the applicant notice of the day, time and place of the scheduled hearing;
(b)gave the applicant notice by one of the methods specified in s 441A of the Act, namely, transmitting it by email to his nominated email address, being the last email address provided to the Tribunal in connection with the review as required by s 441A(5) of the Act;
(c)gave a period of notice that was at least the prescribed period, being 14 days after the date of receipt of the notice: reg 4.35D(3) of the Migration Regulations 1994 (Cth). As the hearing invitation was sent by email, the applicant was taken to have received it at the end of the day on which it was transmitted: s 441C(5) of the Act. The applicant was notified of the hearing on 6 February 2018 and was therefore given 35 days’ notice of the scheduled hearing; and
(d)contained a statement on the effect of s 426A of the Act, being the consequences of the failure to appear.
Pursuant to s 441C(5) the applicant was taken to have received the notification at the end of the day on which is was transmitted. The Tribunal sent to SMS reminders to the applicant’s mobile . The applicant did not attend at the scheduled time and place and no reason for the non-appearance was provided to the Tribunal
Accordingly, the dismissal decision discloses an evident and intelligible justification for the dismissal decision. Further, the Tribunal’s decision falls within a range of possible, acceptable outcomes. I identify no error in the Tribunal dismissing the applicant’s application for review on 28 July 2017.
For completeness, I also do not identify any error in the confirmation decision. The applicant did not file for reinstatement of the review application within 14 days. Therefore, the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act.
As to the request for a Malay interpreter, the applicant’s complaint is unclear. The applicant does not assert that he did not understand the hearing invitation because he required an interpreter. Rather, he says that he did not receive it. The Tribunal contacted the applicant on 10 May 2016 regarding the need for an interpreter for the hearing. Further, as set out above, the hearing invitation complied with the relevant legislative requirements. Additionally, there is no obligation on the Tribunal to ensure that the hearing invitation was provided to the applicant in a language the applicant could understand: SZGWH v Minister for Immigration and Citizenship [2007] FCA 543 at [12]; SZHVM v Minister for Immigration and Citizenship [2008] FCA 600 at [57]. Accordingly, the Court is unable to see how this gives rise to any unreasonableness of behalf of the Tribunal.
I reject the submission that the provision of different email addresses to the Department and the Tribunal suggested that the incorrect email address had been provided to the Tribunal. The hearing invitation was sent to the applicant’s email address. It was not returned undelivered to the Tribunal. There is no obligation on the Tribunal to “search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant”: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 at [21] (NBBL). Further, there is no obligation on the Tribunal to make any enquiry as to the failure on the part of the applicant to appear. Having complied with the legislative requirements under ss 425 and 425A of the Act, the Tribunal was not required to take additional steps or make further enquiries to ensure the applicant was aware of the scheduled hearing or enable him to appear: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [38]-[39]; NBBL at [21].
Ground 1 discloses no reasonably arguable jurisdictional error by the Tribunal.
Ground 2
As to Ground 2, I am not persuaded that the failure by the Tribunal to adjourn the hearing was unreasonable. Firstly, s 426A(1A)(b) expressly empowers the Tribunal to dismiss an application for non-attendance. Secondly, the Tribunal’s decision to dismiss the application, subject to allowing a reinstatement application to be made, rather than (in the absence of any application for adjournment) adjourning the proceedings unilaterally, was a course plainly within the range of possible acceptable outcomes: EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [22].
Ground 2 discloses no arguable jurisdictional error on behalf of the Tribunal.
CONCLUSION
The Application in this case is 436 days outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made if satisfied such extension is in the interests of the administration of justice.
Weighing all of the considerations above, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The Application is dismissed.
The Application will be dismissed with an order that the applicant pay the first respondent’s costs in the scale amount of $4,189.38.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 31 May 2023
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