Kaur v Minister for Immigration

[2017] FCCA 1869

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1869

MIGRATION – Decision by Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.347,359, 379 424, 477
Migration Regulations1994 (Cth), rr.4.10, 4.13,13.4

Case Cited:
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344
SZNYE v Minister for immigration and Citizenship [2010] FCA 500
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
SZTES vMinister for Immigration and Border Protection & Ors [2015] FCA 719
SZRIQ v Federal Magistrates Court of Australia & Ors [2013] FCA 1284; 139 ALD 252
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZOZG v Minister for Immigration and Citizenship [2011] FCA 756
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Commonwealth of Australia;  Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491

Applicant: RAJ KAUR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 569 of 2017

Judgment of: Judge Emmett

Hearing date: 8 August 2017

Date of Last Submission: 8 August 2017

Delivered at: Sydney

Delivered on: 8 August 2017

REPRESENTATION

Applicant appeared in person with the assistance of a Punjabi interpreter

Solicitor for the Respondents: Mr Thomas Liu

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 569 of 2017

RAJ KAUR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where her application for judicial review was filed almost five months after the decision of the Administrative Appeals Tribunal (“the Tribunal”), dated 1 September 2016.

2. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)  In this section:

   ‘date of the migration decision’ means:

   (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 -the date of the written decision under that subsection; or

   (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or

   (c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the oral decision; or

   (d) in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

1. Pursuant to s.477(1) of the Act, the applicant has 35 days in which to seek review of a decision of a delegate of the first respondent refusing her visa application. Pursuant to s.477(2), this Court may extend that period if the Court is of the view that it is necessary and in the interests of justice to do so.

2. The principles in relation to the issues in considering whether time should be extended are clear. Those principles are the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent; and, the prospects of success of establishing jurisdictional error in the Tribunal’s decision.

3. In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344; SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J). In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], Mortimer J stated relevant principles that were approved by the Full Court of the Federal Court of Australia in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21] per Tracey, Perry and Charlesworth JJ, as follows:

   “63. The correct approach 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” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]- [48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.”

4. If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J). The substantive application for judicial review should have such prospects as not to render the extension of time an exercise in futility.

5. The first respondent does not suggest that they would suffer any prejudice if time was extended. However, it is also well established that the mere absence of prejudice is not sufficient by itself to grant the applicant an extension of time (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [21] per Wilcox J).

6. The applicant was unrepresented before Court this morning, although had the assistance of a Punjabi interpreter.

7. On 30 March 2017 the applicant attended a directions hearing before a registrar of this Court. By consent, the applicant was given leave to file and serve any further evidence and submissions in support. The applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

8. The applicant confirmed that she had not filed any further documents either in accordance with the Court’s directions or otherwise and had no further documents to provide to the Court today.

9. I explained to the applicant the power that the Court has, to extend time to her to seek judicial review of the Tribunal’s decision, if the Court decided that it was necessary in the interests of justice to do so.  I also explained to the applicant that paramount for the Court would be the explanation for her delay and the prospects of success of her substantive application.

10. The applicant confirmed that she relied on the grounds for an extension of time as stated in her initiating application filed on 24 February 2017.  Those grounds are as follows:

    “1. I was not informed about my appeal until I was called by the immigration and told me that my visa was expired. I have just call yesterday and asked for the decision copy.

    2. I am not represented by any solicitor and I have not informed properly about my appeal.

    3. I am in a very difficult situation and I believe I have genuine ground of judicial review that I had been denied justice.”

    (Errors in original)

11. I asked the applicant if there was anything further she wished to say in relation to the delay. She replied that she had some financial difficulties in lodging the application and did not understand the rules and regulations. 

12. The solicitor for the first respondent did not seek to cross-examine the applicant. 

13. On its face, the applicant’s explanation for her delay in seeking judicial review of the Tribunal’s decision is entirely unsatisfactory. I explained to her that it is her responsibility to ensure that she informs herself of the rights and entitlements that she has. I noted that at the directions hearing, the applicant was provided with the contact details of interpreting and translating services throughout the process of her visa application.

14. In turning to the applicant’s substantive application, the applicant confirmed that she relied on the grounds identified in her application filed on 24 February 2017, and those grounds are as follows:

    “1. The second respondent acted on assumption that the applicant had received its letter about the fees waiver. On account of mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty. By consequence Tribunal decision is not a decision at all in law.

    2. My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance of section 424A.”

    (Errors in original)

15. The background of this matter and a brief summary of the Tribunal’s decision are accurately reflected in the first respondent’s submissions in paragraphs 4 to 8 as follows:

    “Background

    4. On 14 June 2016, the applicant applied for a medical treatment visa. She claimed that she was "suffering from depression due to my husband current condition and I cannot sleep properly. I need to psychologist. At this moment I am not sure about estimated cost." [Errors in original.] No other evidence or claims were provided in the visa application.

    5. On 27 June 2016, the Delegate decided to refuse to grant the applicant a medical treatment visa.

    6. On 7 July 2016, the applicant applied to the Tribunal for merits review. Along with her application to the Tribunal, the applicant lodged a 'Request for Fee Reduction' form (request form) and annexed a letter from the Commonwealth Bank which simply confirmed that she had an account. The applicant then paid half the prescribed fee. (CB 26) On 28 July 2016, an authorised officer of the Tribunal wrote to the applicant and declined the fee reduction request because the applicant had not provided any evidence of her financial position. The applicant was given a further 2 weeks to pay the prescribed fee in full. She was put on notice that if she failed to do so her matter would be referred to a Member to determine whether she had made a valid application for merits review. The applicant did not subsequently pay the prescribed fee in full.

    Tribunal's decision

    7. On I September 2016, the Tribunal decided that it had no jurisdiction to review the Delegate's decision because the prescribed fee was not paid in full within the prescribed period and, therefore, the application for merits review was invalid (see s.347(l)(c)).

    8. The applicant seeks judicial review concerning the Tribunal's decision that it did not have jurisdiction.”

16. The grounds of the application were interpreted for the applicant, and she was invited to say whatever she wished in support.  The applicant had nothing to say in support of the grounds of her application. 

17. Ground 1 asserts that the Tribunal assumed that the applicant had received its letter refusing a fees waiver and therefore the Tribunal’s decision is not a decision in law.

18. Ground 1 is misconceived. The Tribunal was required under the statutory scheme to correspond with the applicant in the manner that it did. 

19. The Court Book, tendered by the first respondent and marked Exhibit 1R, discloses that following receipt of the decision of the delegate requiring the applicant’s application for a Medical Treatment Visa on 27 June 2016, the applicant lodged an application for review of that decision on 7 July 2016. In that application, the applicant identified a postal address and email for correspondence with her in Australia. 

20. At the time of application, the applicant paid $836.50, being 50 percent of the total fees owing. At the same time, the applicant requested a fee reduction and provided financial details. In support, the applicant provided a letter from the Commonwealth Bank confirming her account details.

21. On 11 July 2016, the Tribunal wrote to the applicant by way of email asking her for further details in support of her application for a fee waiver.  A further email, dated 11 July 2016, informed the applicant that she should attach supporting documents including bank and credit card account statements displaying current balances and transactions over the past month for all personal and joint accounts. That email pointed out to the applicant that she had only provided evidence that she had opened a bank account in June 2016. The information requested was to be provided by 15 July 2016.

22. On 28 July 2016, the Tribunal wrote to the applicant again at her email address informing her that her information about her financial position had been considered and that a decision had been made that payment of the fees would not cause her, or be likely to cause her, severe financial hardship. The letter provided reasons for that decision, and stated that the applicant must now pay the remaining $836.50 owing in respect of her application by 11 August 2016.

23. The letter informed the applicant that if the outstanding fee was not paid by 11 August 2016, her application for review would be allocated to a Tribunal Member to determine whether she had made a valid application. It went on to say that if she did not pay the fee, the Member may decide that she had not made a valid application, and, if her application was found to be invalid, then the decision of the delegate could not be reviewed.

24. On 1 September 2016, the Tribunal wrote to the applicant informing her that the Tribunal had decided that it had no jurisdiction to determine her application and that the 50 percent of the review application fee that had been received by the Tribunal would be refunded to her. The letter was also sent to the applicant’s email address, and the letter included a statement of the Tribunal’s reasons.

25. The Tribunal’s statement of reasons recorded that, pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations1994 (Cth) (“the Regulations”), the application to the Tribunal must be made within the prescribed period as specified in s.347(1)(b) of the Act and r.4.10 of the Regulations, and accompanied by the prescribed fee, unless a determination has been made under r.4.13(4) of the Regulations that the fee should be reduced on the basis of financial hardship.

26. The Tribunal noted that the prescribed period set out in r. 4.10 of the Regulations, starts when the applicant is notified of the decision, and that in the present case the prescribed period ended on 18 July 2016.

27. The Tribunal noted that the fee must be paid within the prescribed period or, if a determination has been made under r.13.4 of the Regulations, within a reasonable period after that determination. The Tribunal noted that before the prescribed period expired, the applicant asked the Tribunal to reduce the prescribed application fee, however, that request was refused and the applicant was advised of the decision by letter dated 28 July 2016.

28. The applicant was then required to pay the application fee within 14 days of receiving the Tribunal’s letter. The Tribunal found that the applicant had been given a reasonable period to pay the fee since being notified of the decision to refuse a fee waiver.  The Tribunal then found the fee had not been paid and therefore the application for review was not a valid application and that the Tribunal had no jurisdiction to review the delegate’s decision.

29. The applicant had answered “yes” to the question on her application for review form if she agreed to sending all correspondence by email.  The Tribunal then proceeded to correspond with the applicant in that manner. 

30. Each of the emails referred to above was sent to the correct email address identified by the applicant in her review application to the Tribunal.

31. In the circumstances, the Tribunal’s correspondence with the applicant was conducted in accordance with the legislative regime.

32. By operation of the deeming provisions in s.379A(5)(d) of the Act and s.379C of the Act, the applicant cannot now claim that she did not receive the correspondence. It is irrelevant whether or not the Tribunal incorrectly assumed that she received its correspondence.

33. In the circumstances, it would appear that the Tribunal’s correspondence with the applicant in relation to a request for a fee waiver and its subsequent decision to refuse that waiver was open to it on the evidence and material before it and for the reasons it gave.

34. In those circumstances, it would appear the Tribunal’s decision that the application before it for review of the delegate’s decision refusing her visa application, was open to the Tribunal, having found that the applicant had been given a reasonable period to pay the fee since being notified of the decision to refuse her a fee waiver.

35. In the circumstances, Ground 1 of the substantive application would appear to have no prospect of success.

36. Ground 2 asserts that the Tribunal did not make any other attempt to contact her, and therefore the Tribunal had made up its mind to dismiss the application, and, that such information should be sent to her in writing for comment, to comply with s.424A of the Act.

37. However, there was no information that enlivened any obligation under s.424A that formed the reason or part of the reason for the Tribunal’s decision. In any event, the Tribunal wrote to the applicant inviting her to send further financial material in support. The delegate had made similar requests.

38. Ground 2 appears to misconceive or misunderstand the obligation of a tribunal in relation to s.424A of the Act. I accept the first respondent’s submission that, in referring to s.424A of the Act at all, the applicant may have been intending to refer to s.359A of the Act which is the relevant part for the nature of her visa application. The obligations under s.359A of the Act are also not enlivened by the decision of the Tribunal for the same reasons. The applicant has not identified any adverse information that would have engaged s.359A of the Act, and none is apparent on the face of the Tribunal’s decision record.

39. The Tribunal was otherwise not required to make any other attempt to contact the applicant. As stated above, the Tribunal discharged its statutory duty in corresponding with the applicant at her email address in the manner in which it did. 

1. It is apparent from the correspondence referred to above that the Tribunal considered the applicant’s request for a fee waiver or reduction. As stated above, the applicant was given reasons for the refusal of her waiver and a further 14 days to pay the remaining 50 percent of the fee. As stated above, the Tribunal’s findings would appear to be open to the Tribunal on the evidence and material before it and for the reasons it gave.

2. To the extent that Ground 2 may be suggesting that the Tribunal had made up its mind and was somehow biased against the applicant, a claim of bias is serious and requires evidence. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

3. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

4. In the circumstances, Ground 2 would appear to have no prospect of success.

5. I accept that there is prejudice to the applicant in refusing to extend time to him to seek judicial review of the Tribunal’s decision. However, in balancing the interests of both parties and the overall interests of justice, I also have regard to the significant public interest in the finality of administrative decisions (see: Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [17] per McHugh J).

6. Whilst I make no final finding as to whether or not the Tribunal’s decision is affected by jurisdictional error, as stated above, none is apparent on the face of the Tribunal’s decision record, and none has been identified by the applicant this morning.

7. In all the circumstances, but particularly in light of the unsatisfactory explanation for the applicant’s delay and the fact that the applicant’s application for judicial review of the Tribunal’s decision appears to have no or no reasonable prospects of success, I am not satisfied that it is necessary in the interests of justice to extend time to the applicant.

8. Accordingly the applicant’s application for an extension of time should be refused with costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 17 August 2017