IXT24 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1283
•26 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
IXT24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1283
File number: MLG 3697 of 2024 Judgment of: JUDGE GOSTENCNIK Date of judgment: 26 November 2024 Catchwords: MIGRATION – protection visa (subclass 866) – visa refused – where first notification of a decision of a delegate of the (then) Minister for Immigration and Border Protection was invalid – where application for review to the (then) Administrative Appeals Tribunal not made within 28 days of the date of notification of the delegate’s decision – where first Tribunal dismissed the matter for want of jurisdiction – where second notice of the delegate’s decision given following BMY18 v Minister for Home Affairs [2019] FCAFC 189 – where second notification sent to incorrect email address – where applicant made a second application for review by the Tribunal more than 28 days after second notification where Tribunal found it had no jurisdiction to review the matter – judicial review – extension of time – applications for judicial review must be made by applicant within 35 days of the date of the Tribunal’s decision – where applicant made application for judicial review almost 3 years and 3 months after time elapsed – applicant in immigration detention – applicant given notice of involuntary removal from Australia – application for urgent injunctive relief to restrain removal of applicant from Australia – whether there is a serious question to be tried – whether balance of convenience favours the grant of relief – injunctive relief granted Legislation: Migration Act 1958 (Cth) pts 5, 7, ss 36(2)(a), 36(2)(aa), 66, 66(2)(d)(iv), 412(1)(b), 477(1), 477(2), 477A(2), 494B, 494B(5), 494C, 494C(5), 500
Migration Regulations 1994 (Cth) sch 2, cl 866.411, regs 4.31, 4.31(2)
Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
BBU15 v Minister for Home Affairs [2019] FCA 1324
Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187
BMY18 v Minister for Home Affairs [2019] FCAFC 189
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464
Cheng v Minister for Immigration and Citizenship [2011] FCA 1290
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825
Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612
Frigger v Trenfield[2019] FCA 1746
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mentink v Minister for Home Affairs [2013] FCAFC 113
Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834
Minister for Home Affairs v DUA16 [2020] HCA 46
Minister for Immigration and Multicultural Affairs vBhardwaj[2002] HCA 11
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs[2023] FCA 434
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
SZVRO v Minister for Immigration and Border Protection [2017] FCA 421
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
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 20 November 2024 Date of hearing: 21 November 2024 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms K McInnes Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3697 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IXT24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
26 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Until the hearing and determination by this Court of the applicant’s extension of time application, and if granted, his judicial review application, or further order, the first respondent (including by his officers, delegates or servants and agents) be restrained from removing the applicant involuntarily from Australia.
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 Gostencnik
On 24 October 2024, the applicant applied for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) to seek judicial review of a decision of the (then) Administrative Appeals Tribunal (Tribunal) made on 21 June 2021. The Tribunal determined it did not have jurisdiction to review a decision of a delegate of the (then) Minister for Immigration and Border Protection refusing to grant the applicant a protection visa. The applicant has been in detention since 26 September 2024 and was scheduled for involuntary removal from Australia on 22 November 2024. By application lodged on 14 November 2024, the applicant applies for an interlocutory order seeking, in substance, to enjoin the first respondent, his department and officers for taking any step to remove the applicant from Australia involuntarily. During the hearing of the interlocutory application, the first respondent gave an undertaking to the Court not to remove the applicant before 4:00 pm on Tuesday 26 November 2024.
BACKGROUND
The applicant is a citizen of Malaysia who applied for a Protection (Class XA) (Subclass 866) visa on 12 January 2017: Court Book (CB)1-CB36, having arrived in Australia on 23 September 2014: CB20 on a (UD-601) Electronic Travel Authority visa, which ceased on 23 December 2014: Supplementary Court Cook (SCB)1. In his protection visa application, the applicant claimed he came to Australia because he gambled away 10,000K ringgit and borrowed 15,000K ringgit from an unlicensed company. He claimed that when he could not make repayments on time, the company hired three gangsters to bother him at home and kept making death threats if the debt could not be resolved: CB31. The applicant claimed that no-one wanted to help him; he believes the Malaysian authorities are corrupted and so did not seek their assistance; and if he returned to Malaysia the gangsters would try to find him and kill him: CB31, CB33.
On 19 May 2017, the delegate refused the visa application: CB48, concluding the applicant was not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or (aa) of the Act: CB48-CB64. A written notification of the refusal of the protection visa application dated 19 May 2017 (first notice) was sent to the applicant by email transmission: CB48, which was the email address the applicant provided in the protection visa application: CB16 (first email address).
On 19 June 2017, the applicant applied to the Tribunal for review of the delegate's decision: CB65-CB66. On 23 June 2017, the Tribunal wrote to the applicant advising him that it appeared his application was not valid as it was not lodged within the relevant time limit, that is, 28 days commencing and including on the day the applicant is notified of the decision (19 May 2017): CB68. As the application was received by the Tribunal on 19 June 2017, the Tribunal invited the applicant to make any comments by 7 July 2017 about whether a valid application had been made: CB68.
The applicant sent an email to the Tribunal from the first email address on 3 July 2017 apologising for the late application. The applicant explained that he uses his smartphone for emails, but the phone was broken before he received the first notice. When he got his smartphone back on 18 June 2017, he realised he had received the first notice and made a review application as soon as possible, which was sent on 19 June 2017: CB70. The Tribunal determined on 7 July 2017 that it did not have jurisdiction in the matter because the application had not been received by the Tribunal until 19 June 2017 and so, it had not been made in accordance with s 412(1)(b) of the Act (as then in force) and reg 4.31 of the Migration Regulations 1994 (Regulations): CB73-CB75. This Tribunal decision has not been the subject of any judicial review application.
On 25 September 2019, the applicant applied for a bridging visa: CB76-CB79, providing a different contact email address (second email address): CB77. The second email address was incorrect and correspondence to it was undeliverable: CB86. The bridging visa application form appears to have been submitted by a self-registered user through a different email address (self-registered user): CB76. The application was assessed as invalid, and the applicant was accordingly notified by email on 1 November 2019 which was sent to the first email address: SCB2-SCB4.
Following the Full Court’s decision in BMY18 v Minister for Home Affairs [2019] FCAFC 189, the (then) Department of Home Affairs apparently identified that the first notice was invalid because it was not in accordance with s 66 of the Act. On 26 February 2020, the Department sent an email to the applicant’s first email address, advising him that the Department needed to send him new correspondence about his, “refused protection visa application” and asking the applicant to provide an email address or postal address to which the correspondence could be sent: CB80-CB81. The applicant does not appear to have responded.
According to a file note, a departmental officer called the applicant on 2 May 2020 on the mobile phone number earlier provided. The applicant did not answer, and a voicemail message was left asking the applicant to confirm the applicant’s email address “for the purpose of receiving documents for the protection visa application”: Exhibit R4, Affidavit of Tess Price, annexure TP-1. The applicant does not appear to have responded.
On 30 May 2020, the Department notified the applicant of the delegate’s decision refusing his protection visa application (second notice): CB82-CB85. The second notice was sent to the second email address: CB82, which was undeliverable: CB86. On 24 July 2020, the applicant notified the Department of a change of postal and email address: CB87-CB89, in which he nominated a different email address for receipt of communication (third email address): CB89. The third email address was also incorrect. The form was also submitted by the same self-registered user that submitted the bridging visa on 25 September 2019: CB89. Also on 24 July 2020, the applicant applied to the Tribunal for a review of the delegate’s decision: CB90-CB91 and nominated the third email address for receipt of communication: CB91.
On 28 September 2020, the Tribunal acknowledged the applicant’s application which was sent to the third email address: CB92-CB97 and noted that the validity of the application had not yet been assessed: CB93. On the same day, the Tribunal sent the applicant an email to both the first and third email addresses, stating that the earlier mentioned correspondence sent to the third email address was returned as the email address did not exist: CB98. The correspondence noted that in his previous review application to the Tribunal, the applicant’s nominated email address was the first email address, and asked the applicant to confirm the correct email address to which the Tribunal should send all correspondence. A further email, substantially to the same effect, was sent by the Tribunal to the applicant on 30 September 2020: CB99. The applicant responded to the Tribunal’s 30 September 2020 email on the same day, confirming receipt of the email by transmission from the first email address by stating, “Hi i just got your email”: CB100.
On 19 October 2020, the Tribunal wrote to the applicant advising that it appeared his application was not valid as it was not lodged within the relevant time limit. The correspondence noted that pursuant to reg 4.31(2) of the Regulations, the period within which an application for review of a Part 7-reviewable decision must be given to the Tribunal was 28 days, commencing on the day he was notified of the decision, and as he was notified by email transmitted on 30 May 2020, he was taken to have been notified on that day: CB101-CB103. The applicant was invited to comment on the validity of his review application by 2 November 2020: CB102, but the Tribunal noted that he did not respond: CB110 at [5]. On 22 June 2021, the Tribunal notified the applicant of its decision by email transmission to the first email address: CB107-CB108, which accompanied the Tribunal’s Statement of Decision and Reasons (Decision) and an ‘Information about Decisions’ fact sheet: CB110-CB114. The Tribunal made its decision on 21 June 2021 and determined that it did not have jurisdiction in the matter because the application for review was not received by the Tribunal within the prescribed time: CB109-CB111. In doing so the Tribunal noted that:
(a)the delegate refused the applicant’s protection visa application on 19 May 2017: Decision at [1];
(b)as the applicant was not in immigration detention on the day he was notified of the decision, the review application had to be made within 28 days, commencing on that day: Decision at [2];
(c)the applicant was notified of the delegate’s decision by letter dated 30 May 2020 dispatched by email to the second email address which the applicant provided to the Department: Decision at [3];
(d)the second email address was incorrect, but it was the last “postal and residential” address provided to the Department by the applicant, and it was open to the delegate to send the notification letter to that address: Decision at [3];
(e)the applicant is taken to have been notified of the decision on 30 May 2020, and so the last day to apply for review was on 26 June 2020: Decision at [4];
(f)the applicant was invited to comment on the preliminary assessment that his application was not valid, but he did not do so: Decision at [5]; and
(g)the Tribunal received the review application on 24 July 2020 and so was not made in accordance with the relevant legislation: Decision at [6].
The earlier mentioned fact sheet relevantly provided the applicant with the following information:
Review of decisions
Applicants can apply to the Federal Circuit and Family Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time. CB113.
The applicant made a third application to the Tribunal for review of the delegate’s decision on 29 February 2024: CB115-CB122, in which he gave the first email address as a contact address: CB118. On 7 March 2024, the Tribunal notified the applicant that it appeared his application was not valid as it was not lodged within the prescribed time and invited the applicant to make any comments about the validity of his application by 21 March 2024: CB124-CB125. By the Tribunal’s third decision made on 28 March 2024, and dispatched to the applicant via his first email address on 2 April 2024, the Tribunal found that it had no jurisdiction in the matter because: the applicant had been notified of the delegate’s decision on 30 May 2020; the review application was not received by the Tribunal until 29 February 2024; the application was not received within the prescribed period, and so was not made in accordance with the relevant legislation: CB129-CB131.
The applicant was located; detained by the Australian Border Force under s 189 of the Act on 26 September 2024 and transferred to Immigration Detention: Exhibit R3, Affidavit of Tess Price, annexure TP-2, – “Removal Details”. On 14 October 2024, Australian Border Force issued the applicant with a “Notice of Intention to Remove from Australia” (NOIRA), informing the applicant that he was liable for removal from Australia under s 198 of the Act, and that it was anticipated he would be removed on 25 October 2024. It appears the NOIRA was issued by phone using a Malay interpreter and that the applicant refused to sign an acknowledgement of receipt of the NOIRA: Exhibit R3, Affidavit of Tess Price, annexure TP-1.
As earlier noted, by application made on 24 October 2024, the applicant applied for an extension of time pursuant to s 477(2) of the Act to seek judicial review of a decision of the Tribunal made on 21 June 2021, which is the second Tribunal decision mentioned in the foregoing chronology.
The applicant was issued with a Malaysian travel document on 30 October 2024 which expires on 30 November 2024: Exhibit R3, Affidavit of Tess Price, annexure TP-2. He was assessed on 7 November 2024 as being fit to travel. The assessment expires on 5 December 2024: Exhibit R3, Affidavit of Tess Price, annexure TP-4. On 8 November 2024, an officer of the Department provided the applicant with a letter dated 7 November 2024 from the first respondent’s solicitors advising the applicant he was scheduled for involuntary removal from Australia on or after 22 November 2024. The letter provided information about filing an application seeking an injunction: Exhibit R3, Affidavit of Tess Price, annexure TP-3. As previously mentioned, the applicant subsequently filed an application to this Court on 15 November 2024, seeking interlocutory injunctive relief.
CONSIDERATION
The principles guiding the exercise of the Court’s discretion whether to grant interlocutory injunctive relief are well established and need only be briefly stated. The applicant must show that there is a serious question to be tried (or a prima facie case), that he is likely to suffer injury for which damages will not be an adequate remedy and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 81-84; Frigger v Trenfield[2019] FCA 1746 at [6]; Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834 at [15]. When considering the grant of an interlocutory injunction, the question of whether there is a serious question (or a prima facie case) should not be considered in isolation from the balance of convenience: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238, 261, [67]. And it is not necessary for the applicant to show that he will succeed on his application, either for extension of time or judicial review. That which needs to be shown is that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending a hearing of the application.
An apparently strong claim may lead a Court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464, 472.
The first respondent contends that the applicant’s application to the Court for an extension of time has little merit, and if I were only considering the strength of that application by reference to that which the applicant, who is unrepresented and requires the assistance of a Malay interpreter, advances, I would agree. But there are two further bases on which it may be said the Tribunal’s decision is attended by jurisdictional error. The first is in respect of the second notice being transmitted to the second email address. I consider there is an arguable case the Tribunal erred in concluding the applicant is taken to have been notified of the decision on 30 May 2020 by reason of s 494C(5) of the Act. The second is that it is arguable the Tribunal’s decision was affected by legal unreasonableness. And so, for reasons I will explain, I consider that there is a serious question to be tried whether the 35-day period within which the applicant can apply to the Court for judicial review should be extended. I also consider there is a serious question to be tried whether the Tribunal’s decision is attended by jurisdictional error on the two bases just described. The balance of convenience, taking into account the strength of the prima facie case identified, also favours the grant of an interlocutory injunction.
An application to the Court for a review of a decision of the Tribunal must be made within 35 days of the date of the Tribunal’s decision: s 477(1) of the Act. The Tribunal made its decision on 21 June 2021 and the 35-day period within which an application to the Court must be made ended at the conclusion of 26 July 2021. The applicant’s application was therefore made nearly 3 years and 3 months after the time prescribed had lapsed. Section 477(2) of the Act allows the Court to extend the 35-day period as the Court considers appropriate if it is satisfied that it is necessary in the interests of the administration of justice to do so.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 Kiefel CJ, Gageler, Keane and Gleeson JJ explained the exercise of the Court's discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2), as follows:
10. The "may" in the chapeau to s 477A(2) confers an authority to exercise the jurisdiction conferred under s 476A(1)(b) or s 476A(1)(c) of the Act, and is not merely facultative in nature. The power is discretionary in the sense that it involves an evaluative judgment as to a state of satisfaction.
11. At a high level of generality, it may be accepted that the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court's exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).
12. On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
13. In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. Those principles, which are non-exhaustive of the factors that may be relevant to an extension of time under s 477A(2), include that "[t]he merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted".
14. Guidelines for the proper exercise of the power in s 477(2) of the Act (which is in relevantly similar terms to s 477A(2)) were stated by the Full Court of the Federal Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In particular, the Full Court stated that an evaluation of the merits of the proposed substantive application that goes further than an "impressionistic evaluation of the [applicant's] proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction". The Court added that "the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review" and, if "a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power".
15. The reasoning of the Full Court in DHX17 was informed by the earlier decision of Mortimer J in MZABP v Minister for Immigration and Border Protection concerning s 477(2), endorsed on appeal by a different Full Court. In MZABP, Mortimer J noted that the subject matter of an application under s 477(2) is not whether the applicant will ultimately be successful in challenging the decision under review. Her Honour considered that the "correct approach" to the assessment of the merits of the proposed application, for the purpose of deciding whether to extend time, "may be expressed by the use of language such as whether a ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success'". Her Honour also expressed the view that "[i]f a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level ... into a fuller consideration of the arguments for and against each ground of review ... that is not a function appropriate to a discretion such as that contained in s 477(2)".
16. Underlying Mortimer J's reasoning was an analysis of the nature of the power conferred by s 477(2). Her Honour considered the legislative history and extrinsic materials but concluded that they shed no particular light on the content of the phrase "in the interests of the administration of justice". Ultimately, her Honour characterised the judgment to be made under s 477(2)(b) as involving a conclusion that "it is appropriate, or fair and equitable, that a litigant should have the opportunity for which the legislative scheme provides: namely, a review of the lawfulness of the decision said to affect the litigant, conducted in accordance with judicial process and subject to considered judicial determination". Her Honour also expressed the view that it will seldom be appropriate to refuse to extend time where a ground of review is properly described as weak as opposed to hopeless, citing the observation of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs, made in relation to s 11 of the Administrative Decisions (Judicial Review) Act, that "a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it".
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.
19. It follows that the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.
(citations omitted)
The non-exhaustive principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 to which reference is made at [13] of Tu'uta Katoa were approved in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5.the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [2], [33]-[36]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144; (2021) 286 FCR 556 at 566, [40].
The extent of the delay, almost 3 years and 3 months – is significant, or to adopt the first respondent’s description – extreme. And it may be accepted that the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38]; BBU15 v Minister for Home Affairs [2019] FCA 1324 at [7]. The explanations the applicant proposes to give for the delay are not particularly persuasive. The applicant’s proposed grounds of extension of time as they appear in the application are as follows (reproduced verbatim):
1.The FOI date 08 september 2023, identifies that the filing methods were inoperative since 23 February 2019.
2.Applicant now seeks extension of time.
The first ground is, respectfully, incomprehensible. But to the extent that it might suggest that he endeavoured to file a judicial review application earlier than 24 October 2024, there are no particulars and nothing to that effect is to be found in the affidavit the applicant filed accompanying the extension of time and judicial review application: Exhibit A1. It is possible that this ground is related to the judicial review application whereby the applicant proposes to contend that the second notice did not comply with s 66(2)(d)(iv) of the Act. More about that contention shortly. The second ground simply states the applicant seeks an extension of time but does not proffer an explanation for the delay. The applicant’s accompanying affidavit explains that he was not able to lodge his application on time because he was not aware of the procedure involved in lodging a judicial review application: Exhibit A1 at [4]. As the first respondent correctly points out, the onus remains on an applicant to make proper inquiries as to any applicable time limit and to take any reasonable action to ascertain whether the relevant decision can be challenged: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]. Moreover, as earlier set out, accompanying the Tribunal’s decision about which complaint is made, was an information sheet which set out the applicant’s right to seek judicial review and the time frame within which such an application could be made: see CB113. Even allowing for the fact that the information was in English, a diligent applicant would have taken some step to have the information translated. The suggestion that the applicant was unaware of the procedure involved in lodging a judicial review application is unlikely to provide an acceptable explanation for the extreme delay.
During the hearing of the applicant’s interlocutory application, the applicant said that about a month after receiving notice of the Tribunal’s decision the applicant consulted a migration agent he said was named “Alan”. He had apparently engaged another migration agent – the earlier mentioned self-registered user – to assist with his review application to the Tribunal. The applicant said that he had paid the migration agent a fee and instructed the migration agent to make an application to the Court for judicial review. The applicant said that he had contacted the migration agent over the period on several occasions and was told he just had to wait. There is nothing in the material the applicant has thus far filed in the Court which would lend weight to this explanation. Moreover, there is no mention of the involvement of the migration agent in the applicant’s affidavit and on one view, the explanation given at the hearing is at odds with the explanation that he gave in his affidavit. It is unlikely that the said involvement of the migration agent, without more, will provide an acceptable explanation for the delay.
Thus, in my assessment, as things presently stand, both the extent of the delay and the absence of an acceptable explanation for the delay are likely to weigh strongly against a conclusion that it is necessary in the interests of the administration of justice to extend time.
Although, the first respondent asserts prejudice “in terms of the significant public interest in the finality of judicial decisions” and actual prejudice as the first respondent is unable to rely on his vested right to retain the decision and to remove the applicant from Australia in accordance with s 198 of the Act, these are unlikely to weigh heavily against the applicant, particularly because the interests of justice are likely to be advanced by granting an extension of time if his application for judicial review has some merit (which as I will later explain, it does), considering of course the other factors already discussed. In a case such as this where the delay is extreme, perhaps it is more apt to say that the merits of the application for an extension of time would have to be particularly obvious to overcome the delay, because if only an ‘arguable case’ were sufficient to outweigh a significant and extensive delay, then limitation periods might be deprived of any meaningful effect: Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187 at [28].
Turning then to the review ground the applicant proposes to advance, which is as follows (reproduced verbatim):
Ground:
The Administrative Appeal Tribunal (AAT) made a jurisdictional error by failing to consider the full integers of the claim.
PARTICULAR
The Tribunal has failed to consider the full integers of the Applicant's claim in circumstances where it erroneously directed itself that it had no jurisdiction due to failure to discern a breach of section 66(2)(d)(iv) in the delegate's decision.
The applicant therefore proposes to contend that the second notice did not comply with s 66(2)(d)(iv) of the Act. Section 66 (as then in force) required the Minister, when refusing to grant a visa, to notify the applicant of the decision in the prescribed way and relevantly required notification to an applicant who had a right to have the decision reviewed under Part 5 or 7 or s 500 to state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
. . .
The applicant’s proposed contention that the Tribunal erroneously concluded it had no jurisdiction because the notification of the delegate’s decision did not comply with s 66(2)(d)(iv) of the Act, has, as the first respondent correctly points out, been considered and rejected on three prior occasions by this Court. It is only necessary to mention one. In Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612, Judge Humphreys concluded there was no jurisdictional error because, although one of the email addresses in the notification in issue was not a functioning address, the notification nevertheless contained clear details of a number of other means by which an application for a review by the Tribunal could be lodged, one of which the applicant in that matter utilised and there was no evidence that that applicant was misled by the erroneous email address.
As in Daksh, the second notice contained several options by which a review application to the Tribunal could be made. And as in Daksh, the applicant applied to the Tribunal using the online facility rather than the stipulated email address. But the proposed review ground here does not appear on the facts to even rise to the level in Daksh, because the second notice contains only one email address, which is not the same address as the erroneous email address the subject of dispute in Daksh. The applicant has not advanced any basis for suggesting that that email address was not functioning, and he does not appear to assert that he was misled by the second notice. The applicant’s proposed ground of review therefore does not appear to have any real prospect of succeeding.
If that were the sum of the judicial review application, I would readily conclude that the applicant has no realistic prospects of succeeding in his application to extend the 35-day period. But although not raised by the applicant, as I earlier foreshadowed, there are two other matters which must be considered.
Dealing with the first matter, the second notice was transmitted to the second email address, which was an incorrect address but one that the applicant provided in his bridging visa application made on 25 September 2019. The Tribunal noted in its decision that the second email address was incorrect, but concluded that as it was the last “postal and residential” address provided to the Department by the applicant, it was open to the delegate to send the notification letter to that address.
The first respondent contends that this conclusion is correct. I doubt the Tribunal was correct in concluding that the email address provided was the last “postal and residential address” the applicant provided to the Department but read fairly, the Tribunal was likely seeking to convey that the email address was the last email address which the applicant had provided the Department. If the second notice was sent to the last email address provided “for the purposes of receiving documents”: s 494B of the Act, then the applicant is taken to have been notified of the delegate’s decision on 30 May 2020, the day on which the email was transmitted to the applicant: s 494C(5). I accept as the first respondent contended, that an email address can be ‘provided’ for the purposes of s 494B(5) in writing, orally, or by a course of dealing between the Minister and the applicant where there had been acquiescence to a particular address being used to receive documents: SZVRO v Minister for Immigration and Border Protection [2017] FCA 421 at [47]. Section 494B(5) permits the first respondent to transmit documents by email to the last email address provided to the first respondent for the purposes of receiving documents. Ascertaining the purpose for which the email address contained in the bridging visa application was provided is to be determined objectively: SZVRO at [49].
The first respondent contends that on an objective assessment of the circumstances in which the second email address was provided, namely that it was in a bridging visa application in a section titled ‘Contact details’, would lead a reasonable person in the first respondent’s shoes to conclude that it was being provided as the email address to be used for correspondence relating to visa applications. But against this must be said that the applicant had already provided a contact email address – the first email address – in his protection visa application, which was at the time and remains the correct email address. A cursory comparison of the first and second email addresses would raise in the mind of a reasonable person that there is some error in one or other of the addresses because the addresses are so similar. It should not necessarily automatically be assumed that the second email address was correct just because it was more recently provided nor that the second email address was provided by the applicant for a purpose other than communications related to the bridging visa application.
The bridging visa application form does not state “contact details” as suggested by the first respondent. Rather, the second email address is given under the heading “electronic communication” and provides that the “Department prefers to communicate electronically as this provides a faster method of communication. All correspondence, including notification of the outcome of the application will be sent to”, and then follows the second email address. Objectively, that information is just as likely to communicate to a person that the email address is being sought for the purposes of sending all correspondence relating to the bridging visa application only, rather than more generally. After all, it was a bridging visa application the applicant was completing when providing the second email address. At the time the applicant completed the bridging visa application form and gave the second email address, there was no reason for him to believe that the first notice, received two years earlier, was deficient. There was no reason to suppose that the Department would need to engage in any further correspondence related to the earlier refused protection visa application. It is therefore by no means clear that the applicant was providing the second email address for a broader purpose, specifically in this case, a communication in the future in the form of the second notice.
For completeness, although in Cheng v Minister for Immigration and Citizenship [2011] FCA 1290 Flick J rejected an argument that a notification of a delegate’s decision sent to an address specified in the visa application, but which was incorrect, was a notice given in accordance with s 494B of the Act and so s 494C conclusively deems it to have been received by the person to whom it was sent, in Cheng there was no question whether the address provided was for the purpose stipulated. Unlike in Cheng, here the second notice was not sent to the (email) address which was specified in the protection visa application. If it had been, there would be no argument. It was instead sent to the second email address specified in a bridging visa application, which arguably, was not given for a purpose beyond sending correspondence and documents relating to that application. Cheng, does not speak to purpose. I therefore consider there is at least some reasonable prospect that the Tribunal’s conclusion that the second email address was given for the purpose identified in s 494B(5) of the Act was incorrect, with the consequence that there is at least an arguable case the Tribunal’s decision is attended by jurisdictional error because the applicant could not be taken to have been notified of the delegate’s decision on 30 May 2020 or at all for the purposes of s 494C(5).
Next is the issue whether the Tribunal’s decision is affected by legal unreasonableness. In Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] the Court observed:
A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".
In the instant case, the Tribunal knew about the first notice, the subsequent application to the Tribunal for a review of the delegate’s decision; the rejection of that application because it was received outside of the timeframe prescribed; and that the decision was affected by jurisdictional error because the first notice was invalid: CB105. In Minister for Immigration and Multicultural Affairs vBhardwaj[2002] HCA 11 an agent of Mr Bhardwaj, who was the applicant for review by the (then) Immigration Review Tribunal (IRT), sent a letter to the IRT by facsimile seeking an adjournment of the hearing to a later date because Mr Bhardwaj was unable to attend the scheduled hearing. Because of an administrative error, the correspondence was not brought to the attention of the IRT member dealing with the application. The IRT member proceeded with the hearing in the absence of Mr Bhardwaj and affirmed the decision under review. The IRT member published a statement and sent copies to Mr Bhardwaj. Subsequently following representations to the IRT by Mr Bhardwaj’s agent, the IRT held a further hearing on the application and made a second decision in favour of Mr Bhardwaj. The issue before the Court was whether the IRT was empowered to make the second decision. The majority of the Court held that the IRT had power to make the second decision. Relevantly, Gaudron and Gummow JJ, with McHugh J and Hayne J concurring, held that the IRT had power because as its first decision was made in jurisdictional error, it did not effect a review as required by the Act and was of no legal effect, with the Act neither expressly nor impliedly providing to the contrary. Callinan J concluded that as the IRT’s first decision involved a failure to exercise jurisdiction which it was bound to exercise, it was open to the IRT to exercise that jurisdiction by its further decision. While Gleeson CJ concluded that it was not inconsistent with the scheme of the Act, that upon becoming aware that the IRT had not given effect to its own intention and had failed to conduct a review in accordance with the Act to give Mr Bhardwaj the opportunity to be heard that the Act required, that he desired and that the IRT had intended to give.
Thus, it may have been open to the Tribunal, armed with the knowledge that the first decision of the Tribunal was affected by jurisdictional error because the first notice was invalid, to have dealt with the applicant’s first application for review, and so making a second decision, instead of dismissing the second application for want of jurisdiction. Accordingly, as the Tribunal did not appear to consider this option if available, its decision to dismiss for want of jurisdiction was arguably legally unreasonable. To this, the first respondent says that ultimately it would have made no difference because the first application the applicant made was invalid in any event.
Section 412(1)(b) of the Act (as then in force) provided that an application for a review of a Part 7– reviewable decision must “be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision”. Regulation 4.31(2) of the Regulations (as then in force) provided that for “paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7-reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision”.
In substance, the first respondent says that the first application to the Tribunal was invalid because it was premature, that it was not made within the window for which provision is made in reg 4.31(2) of the Regulations. There is some force to the first respondent’s construction. But whether the construction is the preferred and correct construction having regard to the text, context and purpose is an argument yet to be had. The effect of the first respondent’s construction, if correct, would be that several decisions of the Federal Court including for example BMY18 and more recently in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs[2023] FCA 434, which after holding that a purported notice given under s 66 of the Act was invalid because the notification letter failed to state in a way that is complete and clear, the time in which the application for review may be made, wrongly or mistakenly remitted the review application to the Tribunal for determination “on the basis that it had jurisdiction to do so”. On the first respondent’s construction, the Tribunal does not have jurisdiction because no valid application has been made. The construction also raises the spectre that applications to the Tribunal responsive to an invalid notice which applications were nevertheless made within 28 days of receiving the invalid notice, might also be invalid applications and the decisions of the Tribunal in those circumstances may have been made without jurisdiction.
The first respondent says that the issue of the validity of the application remitted to the Tribunal was not raised nor considered in BMY18 or Sandor. So much may be accepted. But the proper construction of the provisions at issue is not obviously as the first respondent contends, and it warrants proper and detail consideration. The first respondent urged that I adopt the obiter observations of Charlesworth and Jackson JJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46; 284 FCR 62 at [99]-[101] which were as follows:
So to hold that the Tribunal must review the decision in the absence of the fee would mean that no adverse consequence would follow from an applicant’s failure to comply with the express and clear requirement in s 347(1)(c) that an application must be accompanied by the fee. The Tribunal would have to conduct the review and try to recover the fee from the applicant (often by that stage an applicant dissatisfied with the outcome). That construction of s 347 and s 348 may not give full meaning to the requirement in s 348(1) that an application “is properly made under section 347”, which seems to refer to the whole of s 347 including the requirement in s 347(1)(c). It may also fail to give full effect to the use of the word “properly”, which is apt to describe compliance with the procedural requirements in s 347(1), including payment of the fee.
If these views are correct, then it may be that unless and until the fee is paid, the mandamus should be discharged. However, the Minister did not argue that the primary judge erred by issuing the writ of mandamus by reason of the non-payment of the fee and it has not been suggested that this Court should vary or revoke the writ because the fee is yet to be paid. The Court should not resolve such issues unless they are squarely put in a notice of contention (or notice of appeal) and fully argued.
In the present case, the issues are likely to be academic anyway. Mr Parata can now pay the prescribed fee for review. As soon as he does so, there will be no question that the Tribunal is seized of the review and must proceed with it. Alternatively, the Minister may give him a new notification that is effective to commence the period under r 4.10. That will give Mr Parata seven days within which to pay the fee, or risk the Minister submitting, and the Tribunal finding, that he is then out of time.
The first respondent’s contention seems to be that the issuing of the second notice had the effect that the first application to the Tribunal could no longer be relied upon as founding jurisdiction to review the delegate’s decision. This may be correct, but the issue has not been the subject of full argument, and it was, as counsel for respondent would no doubt readily concede, made on the run so to speak.
In any event if the first respondent’s construction is ultimately accepted as correct, it would render the applicant’s first application to the Tribunal inutile, but is no answer to whether the Tribunal wrongly concluded that the applicant was taken to have received the second notice on 30 May 2020. In all of the circumstances, I do not consider there is any serious question to be tried in respect of the application for extension of time and proposed ground of review the applicant seeks to advance. However, I consider there is a serious question to be tried in respect of both the first and second bases upon which jurisdictional error in the Tribunal’s decision about which the applicant complains might be established. I do not accept, as the first respondent urged that these bases are weak. In those circumstances although the delay period is substantial and the reason for it not satisfactorily explained, taking into account the merits of the bases upon which jurisdictional error might be found, there is also a serious issue to be tried on the question whether the 35-day period within which a judicial review application may be made should be extended.
Turning then to the balance of convenience, I consider the applicant is likely to suffer injury for which damages will not be an adequate remedy and the balance of convenience here favours the granting of interim injunctive relief. The purpose of the grant of interlocutory relief is to ensure that the Court can, at trial, do justice between the parties in the matter which is before it: CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [80]. The issue here is the applicant’s ability to remain in Australia and seek protection if he is granted an extension of time and succeeds in the judicial review application. The first respondent accepts that the applicant would suffer prejudice if the injunction is not granted. The potential injustice is irreparable because the applicant cannot succeed in any remitted Tribunal review if he is removed from Australia because a criterion for the grant of a protection visa under cl 866.411 of Sch 2 to the Regulations is that the applicant must be in Australia.
I accept that the public interest in the proper administration of the Act is a countervailing factor in assessing where the balance of convenience lies. The applicant is not an Australian citizen, and he does not hold a visa that permits him to remain in Australia. He is in immigration detention pursuant to s 189 of the Act and by reason of s 198, he is required to be removed from Australia. Thus, granting an interlocutory injunction will override the course contemplated by the Act, and as Mortimer J observed in CPK20, there “must be a reasonable justification for the Court’s orders to interrupt the course which Parliament intends to occur, once a person has exhausted her or his avenues to secure a visa, including review and appeal”: at [80]. There is also undoubted inconvenience to, and expense incurred by the first respondent and his department in the event that injunctive relief were to be granted, including having to retain the applicant in detention at public expense and the need to alter arrangements that have no doubt involved at least some effort, although the expenses identified by the first respondent during the hearing: Exhibit R3, Affidavit of Tess Price at [9], have likely since been incurred by the changed arrangements brought about by reason of the first respondent’s undertaking earlier noted.
In a case like this where the applicant will otherwise be removed from Australia, the subject matter of the proceeding (being the person’s interest in remaining or entitlement to remain in Australia) may be lost (in law or in reality) and so there may be some force in the proposition that the balance of convenience favours the grant of such relief: CPK20 at [14]. But as earlier noted, the considerations should not be assessed in isolation and the strength of the applicant’s substantive case will often be an important consideration to be weighed in the balance. The considerations are intertwined, and the outcome of a case will turn on its facts: CPK20 at [14].
Overall, I conclude that there is a serious question to be tried for the reasons earlier stated, the serious question is not weak and considering that conclusion in balancing the interests of the first respondent and the applicant, the injustice likely to be suffered by the applicant in losing any possibility of obtaining a protection visa (in circumstances where the merit of that application has not been considered by the Tribunal) if the relief sought is not granted, outweighs the damage or injury the first respondent would suffer if injunctive relief is granted.
I therefore propose to grant injunctive relief.
I will separately hear the parties on orders to facilitate the hearing and determination of the substantive extension of time and judicial review applications.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.
Associate:
Dated: 26 November 2024
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