GKL18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 968
Federal Circuit and Family Court of Australia
(DIVISION 2)
GKL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 968
File number(s): MLG 3752 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 21 November 2022 Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – where Tribunal dismissed the applications for protection visas for non-appearance – where application lodged 393 days after expiry of the statutory timeframe – whether the extension of time ought to be granted – application dismissed. Legislation: Migration Act 1958 (Cth) ss.36(2), 425, 425A, 426(1A), 426(1E), 426A, 441A, 441C, 476(3)(a), 477(2) Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67
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: 58 Date of hearing: 16 November 2022 Place: Melbourne First Applicant: Appearing in-person Solicitor for the First Respondent: Mr A Slevison ORDERS
MLG 3752 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GKL18
First Applicant
GKM18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
21 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The Applicants pay the costs of the First Respondent fixed in the sum of $3,930.
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 MANSINI
In summary
Before the Court is an application filed on 11 December 2018, seeking an extension of time under s.477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 October 2017.
The application was filed 393 days after the expiry of the statutory timeframe for filing. 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 Applicants are citizens of Malaysia and were engaged to be married on 1 January 2016.
On 3 March 2017, the Applicants arrived in Australia on a UD-601 Electronic Travel Authority visa.
On 21 April 2017, the First Applicant applied for a Protection (subclass 866) visa (protection visa application) listing the Second Applicant as a dependent applicant. The Applicants claimed protection on the basis that the First Applicant borrowed money from an illegal money lender “loan shark”, is unable to repay the debt and fears the lender will kill him and the Second Applicant or kidnap the Second Applicant.
On 15 June 2017, a delegate of the First Respondent refused to grant the Applicants a protection visa and provided the Applicants with a decision record (Delegate’s decision). The Delegate found that the Applicants did not satisfy the criteria under ss.36(2)(a), (b), (c) and/or (aa) of the Act and therefore are not persons to whom Australia owes protection.
On 17 June 2017, the Applicants applied to the Tribunal for a review of the Delegate’s decision. In their application to the Tribunal, the Applicants provided an email address for correspondence (their nominated email address).
On 19 June 2022, the Tribunal wrote to the Applicants at their nominated email address with an acknowledgment of the application, and requested their telephone number.
On 20 June 2017, email correspondence was sent from the Applicants’ nominated email address providing contact numbers of each Applicant.
On 15 September 2017, the Tribunal wrote to the Applicants at their nominated email address with an invitation to attend a hearing on 10 October 2017 pursuant to s.425 of the Act. The invitation annexed a factsheet which advised the Applicants 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 (on 3 October 2017 and 9 October 2017, respectively) to the phone number provided for the First Applicant. The Tribunal’s case notes reflect that delivery of both SMS messages failed.
On 10 October 2017, the Tribunal determined to dismiss the application for review of the Delegate’s decision pursuant to s.426A(1A)(b) of the Act because the Applicants failed to appear (non-appearance decision). The Tribunal found that the Applicants had been properly invited to attend the hearing in accordance with s.441A(5) of the Act, the invitation had not been returned to sender, and that two separate SMS reminders were also sent to the First Applicant at the phone number provided to the Tribunal. The Tribunal had regard to the fact that no reason for the non-appearance was given. The Tribunal notified the Applicants of the non-appearance decision by email sent to their nominated email address and provided a factsheet (Information about dismissal of applications – MR Division) which advised the Applicants they may apply for reinstatement of their application within 14 days.
On 27 October 2017, the Tribunal confirmed its decision to dismiss the application pursuant to s.426(1E) of the Act (confirmation decision). The Tribunal found that the Applicants had been 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. As no application for reinstatement was made by the Applicants, the Tribunal found that it was obliged to affirm the non-appearance decision. The factsheet provided earlier with the non-appearance decision also advised the Applicants that they may apply for a review of the Tribunal’s decision and expressly stated that any review application must be made within 35 days of the date of the Tribunal’s decision.
On 11 December 2018, this application for judicial review was filed with the Court. Only the non-appearance decision is subject of this application for judicial review. The application nominated the same email address for service as was provided to and adopted by the Tribunal.
On 11 February 2019, a response was filed on behalf of the Respondents seeking the application for an extension of time be dismissed as the Applicants had not adequately explained the delay in seeking judicial review and contended that the decision under review was not affected by jurisdictional error.
Orders were made by a Registrar of this Court on 28 October 2020 directing: the First Respondent to file a court book by 11 November 2020; the Applicants to file any amended application with proper particulars, any supplementary court book and written submissions at least 28 days before the hearing; and directing the First Respondent to file written submissions at least 14 days before the hearing.
On 11 November 2020, the First Respondent filed a court book.
On 10 July 2022, the matter was listed for hearing before a Judge of this Court on 11 November 2022. The parties received notification of the listing by email correspondence to their nominated email addresses for service.
On 28 October 2022, the First Respondent filed an outline of submissions and, on 15 November 2022, the First Respondent filed a list of authorities.
On 7 November 2022, the hearing was adjourned and re-docketed to the Court as presently constituted, at which time the hearing was re-listed for 16 November 2022. As at the time of the hearing, the Applicants had not filed an amended application, any supplementary court book or any written submissions - either as directed in accordance with the original orders and hearing date of 11 November 2022 or at all (with the benefit of additional time and a later hearing date).
The matter proceeded to hearing on 16 November 2022 via Microsoft Teams before the Court as presently constituted (sitting in the Melbourne Registry). The First Applicant appeared on behalf of both Applicants and with the assistance of a Mandarin interpreter. The First Applicant confirmed that no evidence had been filed or was sought to be filed since the originating application and supporting affidavit was filed on 11 December 2018. The First Applicant confirmed they had received the First Respondent’s written submissions. At the invitation of the Court, the First Applicant was granted an adjournment to have those submissions interpreted before the hearing proceeded.
An order amending the name of the First Respondent to “Minister for Immigration, Citizenship and Multicultural Affairs” was not opposed and made immediately after the hearing.
application for an extension of time
Was the application filed late?
Section 477(2) 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 non-appearance decision, subject of review, was made on 10 October 2017. An application for judicial review of that decision in this Court was due to be filed by 14 November 2017. This application seeking judicial review of that decision was not lodged until 11 December 2018.
Accordingly, the application was made 393 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 satisfied that it is necessary in the interests of the administration of justice to make the order.
The statute does not specify particular 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 (BTI15). The provision requires the Court “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”: BTI15, at [40] per Jagot and Halley JJ. Whilst the matters to which regard may be had are not expressly confined by the Act, and the guidance afforded by the authorities is not an exhaustive list, matters that are usually relevant include the following:
(a)the extent of the delay and the explanation for it;
(b)any prejudice to the respondent that would be occasioned by a grant of the extension;
(c)the impact on the applicant if the time is not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
(BTI15, at [25]-[26] per Logan J).
By the application filed on 11 December 2018, the Applicants specified 2 grounds as to why they say it is necessary in the interests of the administration of justice to make the order for an extension of time, in the following terms:
1. My friend told me to the effect that he helped us to file a Ministerial Intervention after we missed the hearing date resulting the AAT dismissing our application
2. Recently, we noted that we did not have visas and we have the right to apply for judicial review to Federal Circuit Court after the AAT dismissed our application.
(sic.)
Other than the accompanying affidavit which annexed the Tribunal’s decision, as earlier referenced, nothing further was filed in support of the request for an extension of the time for filing.
At the hearing of this matter, the First Applicant was invited to elaborate and sought to add the following for consideration of the Court:
(a)The Applicants did not know about the Tribunal hearing. In this regard, the First Applicant was taken to the email correspondence from the Tribunal notifying the Applicants of the hearing, which was sent to their nominated email address - the same “gmail” email address as that on this application and relied on to successfully communicate with the Applicants in the present application. The Applicant accepted that the email address was the same but contended that the Applicants did not have access to their nominated email address at the time of the Tribunal hearing because it was being operated by a friend.
(b)The Applicants did not know of their rights to bring this judicial review application until they started paying attention to their visa progress; which is when they started to get help from friends and realised they could bring this application. When asked to explain when these things were claimed to have occurred, the First Applicant explained it was a long time ago, they cannot remember the exact date, but it was probably 2020. When reminded that the application was filed on 11 December 2018, the First Applicant then said if that is the case then it probably was about December 2018 that they started to get help and learned of their options to bring this application for judicial review.
Ultimately the First Applicant on behalf of both Applicants accepted that the non-appearance before the Tribunal was their own personal responsibility, submitted that they understand that they should have followed up and that all of this happened due to their own personal negligence. Nonetheless, they asked the Court to allow an extension of the time for filing.
Delay and explanation
In this case, the period of delay was 393 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].
It is not contentious that the Applicants did not appear before the Tribunal. However, taking the submissions of the Applicants before the Court at its highest, they have not offered a plausible or acceptable explanation for their delay in making this application. The Applicants, by their oral submission to the Court, have properly accepted that they were responsible to ensure the Tribunal was notified of how to communicate with them and they were responsible to pursue their own visa application with care. However that position (admirable and appropriate as it may be) is not a basis to excuse the delay and of such a substantial period.
To the extent that the Applicants were not aware of their options (to seek Ministerial intervention or pursue this application for judicial review), this is also not a reason to validate the application for judicial review. The Applicants were advised of their rights to apply to this Court within 35 days of the non-appearance decision, to their nominated email address for service. And, in any event, ignorance is not an adequate or acceptable explanation for an extension of the time for filing.
Considered individually or together, I am not persuaded that there is a reasonable explanation for the delay in the present case. The length and explanation for the delay weigh strongly against an extension of time in this matter.
Prejudice
The First Respondent properly did not contend it would suffer any particular prejudice if the Applicants were 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 Applicants
There is a public interest in ensuring that decisions of the executive are made lawfully. Relevant to this will be the merits of the substantive grounds relied upon, which are considered further below. However it has also been recognised that there is a public interest in the finality of administrative decisions and in my view that is a strong consideration in the present case: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].
As to the impact upon the Applicants, if the extension of time is refused then the Tribunal’s decision will stand. Although an alternative route of review might be available, the refusal of an explanation for an extension of time forecloses any right of appeal: Act, s.476A(3)(a); see also MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, [65].
I accept the impact on the Applicants is significant for them in that they would be returned to their country of nationality which is a circumstance they fear, and that this is a matter weighing in favour of the grant of an extension.
Merits of the substantive application
The time limitation reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a decision of the Tribunal. While the discretion of the Court is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.
The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the grounds available to the Applicant are reasonably arguable.
The two grounds of the substantive application are as follows:
1. The Tribunal failed to afford procedural fairness.
2. The Tribunal failed to make the decision on the face of evidence already provided even if we failed to attend the hearing.
I am not persuaded that the grounds of the substantive application are reasonably arguable for the following reasons.
The Tribunal proceedings were conducted under Part 7 of the Act. Division 4 of Part 7 exhaustively codifies or confines the Tribunal’s procedural fairness obligations in this regard.
The Tribunal invited the Applicants to attend the hearing and that invitation complied with the requirements at s.425A of the Act in that the Applicants were given more than 14 days’ notice at their nominated email address and explained the consequence of non-appearance at the hearing.
The hearing invitation and other communications were sent from the Tribunal to the Applicants at their nominated email address. The Tribunal is permitted, by s.441A(5), to communicate with a party to a review application by email – specifically, the last email address provided to the Tribunal by the recipient in connection with the review. Section 441C provides that when the Tribunal corresponds by email in accordance with s.441A(5), then they are taken to have received the document at the end of the day on which it was transmitted. Similarly, even though the SMS communications failed to deliver, the Tribunal was entitled to rely on the phone number provided by and for the Applicants – and, in any event, this takes the matter nowhere given the email communications were appropriately issued.
I identify no reasonably arguable error in relation to the first ground of the substantive application.
As to whether there was a failure on the part of the Tribunal to make a decision, under s.426A of the Act, when an applicant(s) is properly invited to attend a hearing but fails to do so, s.426A(1A)(b) empowers the Tribunal to dismiss the application without further consideration of the application or information before it. Although subject to the overall requirement that it be exercised reasonably, the Tribunal’s exercise of the power in the present case was reasonable because the Applicants had been properly notified and no reason for non-appearance was given or request for an adjournment was made.
The Applicants did not file for reinstatement of their application within 14 days. Therefore the Tribunal was required to confirm the dismissal decision by s.426A(1E) of the Act.
Accordingly, there is no reasonably arguable error in relation to the second ground of the substantive application.
Conclusion
The application in this case being 393 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 Applicants pay the First Respondent’s costs in the scale amount of $3,930.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 21 November 2022
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