KAN24 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1312
•27 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
KAN24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1312
File number(s): MLG 3986 of 2024 Judgment of: JUDGE CORBETT Date of judgment: 27 November 2024 Catchwords: MIGRATION – Protection (Class XS) (Subclass 866) Visa – application for extension of time under s 477(2) of the Migration Act 1958 (Cth) - application for judicial review – application for interlocutory injunction prohibiting applicant’s removal from Australia – delay substantial – no serious question to be tried - application dismissed. Legislation: Migration Act 1958 (Cth) ss 198, 477(2), 426A(1A)(b)
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth)
Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
WQRJv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of last submission/s: 27 November 2024 Date of hearing: 27 November 2024 Place: Melbourne Solicitor for the Applicant The applicant appeared by video link Counsel for the Respondents Mr J Barrington Solicitor for the Respondent Australian Government Solicitor ORDERS
MLG 3986 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAN24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
27 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to Administrative Review Tribunal.
2.The application filed 22 November 2024 for an interlocutory injunction be dismissed.
3.The application filed 22 November 2024 for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) be dismissed.
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the application filed 22 November 2024 fixed in the amount of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE CORBETT
These are the reasons for judgment delivered ex tempore on 27 November 2024, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor maters to reflect the intention of the court.
By an application filed with this Court on 22 November 2024, the applicant seeks an urgent interlocutory injunction to prevent his removal from Australia to Malaysia and an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made 9 November 2023. The Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
On 18 November 2024, an officer of the Australian Border Force gave the applicant a Notice of Intention to Remove from Australia pursuant to s 198 of the Migration Act1958 (Cth) (Act) which advised that the applicant would be removed from Australia on or after 25 November 2024. The applicant is scheduled to be removed tomorrow afternoon, 28 November 2024 at 3:10pm.
On 22 November 2024, the applicant filed an application for judicial review in this Court. That application included an application for an extension of time pursuant to s 477(2) of the Act. In the application for review, the applicant sought an interlocutory injunction to stay the removal scheduled for 25 November 2024. The decision which the applicant seeks to review was a decision of the Tribunal made 9 November 2023 in which the Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the visa to the applicant.
The Decision of the Tribunal to affirm the delegate’s decision to refuse to grant the visa was preceded by an order by the Tribunal made 16 October 2023 to dismiss the applicant’s application for review for non-appearance by the applicant before the Tribunal at a hearing on 15 October 2023. The Tribunal dismissed the application for review pursuant to s 426A(1A)(b) of the Act. In the application for judicial review by this Court, the applicant identified the grounds of review as follows:
(1)Principles of natural justice; and
(2)Meritorious ground.
The application for judicial review filed 22 November 2024 was accompanied by an affidavit of the applicant sworn 13 November 2024. In that affidavit, the applicant exhibited a copy of the Tribunal's Decision. and a three-page letter addressed to the Registrar of this Court. In that letter, the applicant set out the grounds for an extension of time as follows:
Dear Registrar,
I am submitting this statement of claim to seek an extension of time for my appeal of the AAT decision to the Federal Court regarding Case AAT CLF2017/109412.
Background:
1.Notification Failure: In November 2023, the AAT rendered a decision regarding my case. However, due to the mismanagement of my contact details by my migration agent, I was never informed of this decision.
2.Migration Agent’s Negligence: At the time of the AAT decision, my case was under the control of a migration agent who utilized my outdated email address. I am able to provide documentation to confirm this oversight and the lack of effort made to communicate the decision to me.
3.Recent Awareness: The decision only came to my attention on October 24, 2024, upon which I immediately sought legal counsel to address the oversight.
On page three of the letter to the Registrar, the applicant set out further legal grounds for extension as follows:
Legal Grounds for Extension:
1.Failure to Notify: It is a fundamental legal principle that parties must be duly informed of decisions affecting their rights. The lack of notification denied me the opportunity to exercise my appeal rights within the prescribed timeframe.
2.Principles of Natural Justice: I was deprived of procedural fairness as I was not given a chance to respond or appeal due to the notification failure caused by the migration agent’s negligence.
3.Meritorious Grounds: Upon recent discovery of the decision, I believe there are substantive grounds upon which to challenge the AAT’s ruling, further necessitating an extension to prepare a valid appeal.
4.No Prejudice to Respondent: Granting the extension will not unduly prejudice the respondent, but rather ensure fairness and justice in light of the exceptional circumstances.
I respectfully request that the Federal Court grants this extension to allow a thorough examination of my case.
Thank you for your consideration.
This hearing was convened as a matter of urgency. The applicant appeared by video link from the Melbourne Immigration Detention Centre and was assisted by an interpreter fluent in the Malay and English languages. The Minister was represented by Mr Barrington of Counsel, instructed by Mr Sypott from the Australian Government Solicitor’s office. In response to the application for urgent injunctive relief, the Minister relied on the following:
(1)An affidavit of Mary Margaret Barras-Miller affirmed 26 November 2024 with annexures thereto.
(2)An outline of submissions dated 26 November 2024 opposing the relief sought by the applicant.
(3)A list and bundle of authorities which identified six cases for consideration by the Court.
In the affidavit of Ms Barras-Miller affirmed 26 November 2024, the deponent set out the procedural history of the application for the visa and the review by the Tribunal in paragraphs [3] to [15] of that affidavit. The affidavit exhibited the original application for the visa, the decision of the delegate of the Minister made 8 December 2017, the application for review to the Tribunal dated 16 December 2017, an invitation to the Tribunal hearing, the decision of the Tribunal to affirm the delegate’s decision made 16 October 2023, the decision of the Tribunal to dismiss the review application made 9 November 2023, the application for review by the Tribunal dated 24 October 2024, and a copy of the Notice of Intention to Remove from Australia.
The explanations given by the applicant for non-appearance before the Tribunal and an extension of time was the failure to receive notification of the Tribunal’s decision, negligence on the migration agent’s behalf, recent awareness of the Tribunal’s decision, and that there was no prejudice to the Minister to grant the extension of time. The applicant has not sought to supplement his affidavit with further evidence, nor has he sought to identify the migration agent concerned or explain why no inquiries were made of the migration agent regarding the progress of his application to the Tribunal.
The application for review to the Tribunal does not identify a migration agent and specifically designates that correspondence should be directed to the applicant at the email address nominated in the application. That email address is also the same email address provided in the application for the visa, which the applicant stated he completed himself. At question nine of the application and on page 33 of the affidavit of Ms Barras-Miller, when asked where written communications should be directed to, the applicant selected the response which said, “all written communications about this application should be sent to myself”.
In considering whether to grant the interlocutory injunction, the principles are well established. In Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46, the High Court identified two questions; Firstly, whether there is a serious question to be tried as to the applicant's entitlement to relief, and secondly, whether the balance of convenience favours the grant of an injunction.
In the circumstances of this case, I am not satisfied that there is a serious question to be tried. If the applicant is to proceed with an application for judicial review of the decision of the Tribunal, the applicant must first obtain an extension of time under s 477(2) of the Act. The factors which the Court should consider in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal and any prejudice that may be suffered by the Minister, noting that the absence of prejudice is not sufficient (see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28).
In this case, the delay in bringing the application is 344 days. That is a substantial delay that requires proper and persuasive explanation. The delay has not been properly explained and the applicant has not identified the name of his migration agent, nor has he produced any documents to establish any negligence on the agent's behalf in failing to notify the applicant of the Tribunal decision.
This Court has also considered the merits of the application for review on an impressionistic level to determine whether there are reasonable prospects of success. I am not satisfied that the application for review of the Tribunal's decision has merit or reasonable prospects of success. In this case, the Tribunal complied with its codified obligations of procedural fairness, and mere oversight or negligence of a migration agent is not enough to vitiate the Tribunal's decision (see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35).
In his application to this Court, the applicant identified in ground two that he had meritorious grounds for review of the Tribunal's decision. No particulars were given to further substantiate that ground of review, and it is otherwise vague and unclear. This ground does not give rise to a serious question to be tried.
In the circumstances, this Court does not regard there to be a proper reason for extension of the time to bring the application, therefore, there is no serious question to be tried so as to entitle the applicant to the injunction. I have also considered the balance of convenience and acknowledge that the application for a visa by the applicant was for a Protection visa which may be rendered futile if the injunction is not granted. However, I have also weighed this against the public policy considerations referred to by Counsel for the Minister, which are also referred to in the decision of Derrington J in WQRJv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736. In the absence of a prima facie case or a serious question to be tried, the application for an interlocutory injunction and the application to seek an extension of time for judicial review must be dismissed pursuant to s 477(2) of the Act.
Counsel for the Minister also sought the costs and disbursements of and incidental to the application filed 22 November 2024 fixed in the amount of $4,189.38, which I consider to be reasonable and in accordance with the applicable scale.
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
I propose to make orders to that affect.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 27 November 2024
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