Okumu v Minister for Home Affairs
[2019] FCCA 1143
•1 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OKUMU v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1143 |
| Catchwords: 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.362B, 362C, 477 |
| Cases cited: Hunter Valley Developments Pty Limited v Cohen (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 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 Jess, M.P. v. Scott, R.T. & Ors (1986) 12 FCR 187 Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 Minister for Immigration v Stretton [2016] FCAFC 11 Kaur v Minister for Immigration and Border Protection [2016] FCA 132 |
| Applicant: | GORDON OMONDI OKUMU |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 336 of 2019 |
| Judgment of: | Judge Emmett |
| Hearing date: | 1 May 2019 |
| Date of Last Submission: | 1 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thomas Bagley |
| Solicitors for the Applicant: | MyVisa Lawyers |
| Solicitors for the Respondents: | Mr Andras Markus (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Sydney |
SYG 336 of 2019
| GORDON OMONDI OKUMU |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| Administrative ApPeals Tribunal |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
1. By application filed on 15 February 2019, the applicant seeks an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal, dated 3 January 2019 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) cancelling the applicant’s student visa. The decision was made by the Delegate on the basis that from 14 March 2016 to 5 December 2016 the applicant did not comply with condition 8202(2)(a) of his student visa, which required him to be enrolled in a registered course.
2. Section 477 of the Migration Act 1958 (Cth) (“the Act”) provides that the Court may extend time beyond the statutory 35 day period allowed if the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
3. The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. 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 decision maker’s decision.
4. 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) 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:
1. “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.”
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 at [21] per Wilcox J).
6. 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).
7. It is also well established that the longer the delay, the more persuasive the explanation needs to be (see Jess, M.P. v. Scott, R.T. & Ors (1986) 12 FCR 187 at 195 per Lockhart, Sheppard & Burchett JJ).
8. Regard must also be had to the significant public interest in the finality of administrative decisions (see Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491, at [15]-[17] per McHugh J).
9. On 15 December 2016, the applicant lodged an application for review of the Delegate’s decision. In that application, the applicant identified his correspondence details, including his email address.
10. On 16 December 2016, the Tribunal acknowledged receipt of the application for review. In the course of that acknowledgment letter, the Tribunal informed the applicant that he should provide material or written arguments for consideration as soon as possible.
11. On 12 November 2018, the Tribunal sent to the applicant’s email address as identified in his application for review, a letter attaching an invitation to attend a hearing before the Tribunal. That letter stated that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone. The letter invited the applicant to attend a hearing on 18 December 2018 in accordance with the relevant statutory scheme.
12. The letter also invited the applicant to send any further documents and informed the applicant that the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or, may dismiss the applicant’s application for review without any further consideration of the application or the information before it. The letter also informed the applicant that a dismissed case could be reinstated on an application made within 14 days.
13. The applicant did not attend the hearing on 18 December 2018.
14. On 18 December 2018, the Tribunal made a decision dismissing the applicant’s application for review pursuant to s.362B(1A)(b) of the Act. The Tribunal was satisfied that the applicant had been invited to attend the hearing in accordance with the statutory scheme; that the invitation had not been returned; and, that two separate SMS reminders were also sent to the review applicant about the hearing. The Tribunal found that no satisfactory reason for the non-appearance was given.
15. That decision was sent to the applicant, again to his email address, under cover letter from the Tribunal, dated 19 December 2018. That letter informed the applicant that he may apply for reinstatement of his application by 2 January 2019. The letter informed the applicant that in his reinstatement application, he should set out the reasons why he failed to appear at the hearing and to provide any other information he wished the Tribunal to consider when deciding whether his reinstatement application should be granted.
16. On 2 January 2019, the applicant applied for reinstatement by a letter in the following terms:
1. “I notice that I missed my hearing scheduled for the 18th December, 2018. I’d like to express my sincere apology.
2. I haven’t been keeping tabs on my email messages lately, and that is my sole and sincere reason for failing to read the Tribunal’s email that came with it, an invitation to attend a hearing. This was a negligent mistake.
3. While I acknowledge my failure to show on the 18th December, 2018, I’d wish to request for a new date to be set for a hearing. I will check my email regularly for a new invitation, if a new one issued, and will present myself on set date for a hearing.”
17. At that point in time, the applicant had before him the Tribunal’s decision which referred to the steps the Tribunal had taken in inviting him to a hearing, including the fact that the Tribunal had sent two separate SMS reminders to the review applicant about the hearing.
18. On 3 January 2019, the Tribunal refused the reinstatement application. The Tribunal noted that it had dismissed the applicant’s application for review on 18 December 2018 on the basis of the applicant’s failure to appear at the scheduled hearing.
19. The Tribunal then noted that the applicant had been notified of the dismissal decision and given a copy of that statement in accordance with the statutory scheme. The Tribunal acknowledged that the applicant’s application for reinstatement was made within the 14 day period. However, the Tribunal did not consider it appropriate to reinstate the application. In making that decision the Tribunal stated as follows:
1. “5. The applicant stated in his response to the notice of dismissal that he missed the date of the hearing scheduled for 18 December 2018 because he had not been keeping tabs on his email. He said this was the sole reason for his failure to read the email and the invitation to attend a hearing that was attached. The applicant requested a new hearing date and undertook to check his email regularly for a new invitation. The Tribunal notes that as well as a hearing invitation sent by email, the applicant was sent SMS reminders to attend the hearing on 18 December which were forwarded on 11 and 17 December at 11.00am each time. The reminders were sent to the mobile number provided by the applicant in his application for review and the record of their transmission does not indicate any failure in delivery. The applicant had not provided any change or update to his phone number.
2. 6. The Tribunal has considered the applicant’s response to the initial dismissal and is satisfied the applicant was adequately informed of the hearing date for his application to a review a decision to cancel his Subclass 573 Student Visa. In the circumstances the Tribunal does not consider reinstatement to be appropriate.”
The proceeding before this Court
20. In the proceeding before this Court the applicant was represented by Mr Bagley, of counsel.
21. On 15 February 2019, the applicant lodged his application before this Court seeking an extension of time based on the following grounds:
1. “1. The Applicant has meritorious grounds of appeal.
2. 2. The Applicant will be prejudiced should the Honourable Court not grant him an extension to appeal out of time.
3. 3. The delay in filing the application does not constitute an unreasonable delay or an unreasonable lapse of time.
4. 4. There is no prejudice to the Respondents should the Applicant be granted an extension to file the application out of time.”
22. An affidavit of the applicant, affirmed 16 April 2019, was read by Mr Bagley. Objection was taken to paragraph 8 on the grounds of relevance. However, it was allowed into evidence. The affidavit addressed the reasons for the applicant’s failure to appear at the Tribunal hearing on 18 December 2018 and also addressed the applicant’s delay in seeking judicial review before this Court. Relevantly, the affidavit is as follows:
1. “Failure to appear
2. 4. I understand that the visa refusal upheld as a result of my failure to attend my hearing, which was scheduled at the Administrative Appeals Tribunal ("Tribunal") on 18th December 2018. I had failed to appear before the Tribunal because I did not regularly check my emails and I was unaware of the notification for an invitation to attend a hearing.
3. 5. On 19 December 2018 I was sent an email from the Tribunal stating that I had failed to attend my hearing and the Tribunal will proceed to make a decision on my matter.
4. 6. I first checked my email on2 January 2019, when I checked my email. On that date, I saw the email the email I referred to at paragraph 5 and an email transmitted on 19th November 2018. I responded to the Tribunal via email stating the reason behind my failure to attend my hearing. I also requested for a new hearing date to be assigned to my matter. Annexed and marked “G0-1” is a copy of the email to the Tribunal.
5. 7. On 3 January 2019, I received the Tribunal's decision which affirmed the decision of the Department to cancel my Subclass 573 Student (Class TU) visa.
6. 8. The decision record of the Tribunal's decision dated 3 January 2019 states that the Tribunal sent me SMS reminders on 11 December 2019 and 17 December 2019 at 11am on each of the mentioned dates to attend the hearing on 18 December 2019. My mobile phone was inoperable during this time and I did not receive the SMS/text messages from the Tribunal. My phone was only capable of receiving iMessages at the time.
7. Delay
8. 9. I failed to comprehend the last date on which I could file an application to the Federal Court and believed this date to be 8th February 2019. However, the last date to file a review application to the Federal Circuit Court expired on 7th February 2019. This was a genuine mistake on my part due to a failure to correctly calculate the dates. English is not my first language and I am not familiar with the Australian legal system.
9. 10. If my application is refused, the likely outcome is that I will be deported from Australia.
10. 11. If my judicial review application is successful, and the Tribunal orders a further hearing of the matter, I undertake to attend in person with any solicitor I have instructed.”
23. The substance of the applicant’s argument on judicial review was that the decision of the Tribunal, dated 3 January 2019, in refusing to reinstate the applicant’s application for review was legally unreasonable in the terms understood in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
24. As stated above, in considering an application for an extension of time, it is well established that there are several factors to which the Court must have regard. Those include the extent of the delay in seeking judicial review of the decision; the reasons for such delay; the prejudice to the respondents; the prejudice to the applicant; the public interest in having finality in respect of administrative decisions; and, the merits of the application for judicial review.
25. The delay in this case was one day. Whilst the solicitor for the first respondent, Mr Markus, submitted that the explanation was inadequate, Mr Markus conceded that if the merits of the application made clear that it was in the interests of justice to extend time, then time should be extended, irrespective of other considerations.
26. At the heart of Mr Markus’ submission, was that to grant an extension of time would be futile insofar as the application for judicial review has no or no sufficient prospects of success. Mr Markus contended that the Tribunal’s exercise of its discretion in refusing to grant reinstatement was not affected by any legal unreasonableness or any other error.
27. Mr Bagley, on behalf of the applicant, spent some time taking the Court through the case of Kaur v Minister for Immigration and Border Protection, a decision of Mortimer J cited in (2014) 236 FCR 393 (“Kaur”). That was a case where the applicant had extensive correspondence with the Administrative Appeals Tribunal in preparation for a hearing for review of the delegate’s decision. The Administrative Appeals Tribunal invited Ms Kaur to attend the hearing which she duly did.
28. Thereafter, there was a substantial amount of correspondence between Ms Kaur and the Administrative Appeals Tribunal during which various further information was provided to the Administrative Appeals Tribunal. The correspondence resulted in a second invitation by the Administrative Appeals Tribunal to the applicant to attend a hearing. The applicant failed to attend that hearing and the Administrative Appeals Tribunal proceeded to make a decision on the matter before it without taking any further steps to allow or enable the applicant to appear before it. Ms Kaur then sought judicial review of the Administrative Appeals Tribunal’s decision to dismiss the application before it and that application was dismissed in the Federal Circuit Court of Australia.
29. On appeal, Mortimer J identified the question before her was whether the Administrative Appeals Tribunal’s exercise of discretion under s.362B of the Act was legally unreasonable and whether the Administrative Appeals Tribunal denied the appellant procedural fairness. The invitation to a hearing sent to Ms Kaur was sent by the Administrative Appeals Tribunal by registered post and was returned to the Tribunal in circumstances which made it apparent that the applicant had not received that invitation.
30. In considering the overall circumstances of the history of the applicant’s communications with the Administrative Appeals Tribunal and the involvement of the applicant in her review application with the Administrative Appeals Tribunal, Mortimer J had regard to the nature of Ms Kaur’s communications with the Administrative Appeals Tribunal and of her evident diligence to provide sufficient information. In those circumstances, Mortimer J found that the Administrative Appeals Tribunal should have realised the failure to file a response to the hearing invitation and the non-appearance of the second hearing were out of character and departed from the pattern of conduct with the first respondent in terms of her attitude to the review.
31. Mortimer J inferred that if the Administrative Appeals Tribunal had called or emailed Ms Kaur, she would have responded in the way that she did after receiving the Administrative Appeals Tribunal’s decision. Ultimately, Mortimer J found that this course of conduct, coupled with the two years that it had taken the Administrative Appeals Tribunal to come to the point of review, demonstrated no particular sense of urgency on the part of the Administrative Appeals Tribunal and that the applicant’s non-response to the second hearing invitation and her failure to attend, given her past behaviour, was out of character.
32. In those circumstances, Mortimer J found that the Administrative Appeals Tribunal’s exercise of its discretion was legally unreasonable and accordingly upheld the appeal.
33. The facts in the case before this Court are very different. There was no communication ever between the Tribunal and the applicant up until the point of the applicant’s application for reinstatement. As stated above, the applicant had been invited to send any information and material to the Tribunal for consideration. There had been no such further material sent.
34. Whereas Mortimer J made a finding that Ms Kaur’s past behaviour of involvement in her review application with the Tribunal was out of character with a non-response to the second hearing invitation and her failure to attend the hearing, no such finding could be made in this case. The applicant’s interactions with the Tribunal did not place any obligation on the Tribunal to have regard to whether the applicant’s failure to appear was out of character.
35. In its decision on the applicant’s application for reinstatement, the Tribunal noted the applicant’s explanation for his failure to see the hearing invitation, dated 12 November 2018, until 19 December 2018 when he was notified of the Tribunal’s decision dismissing his application for non-appearance. The Tribunal noted that the applicant said that he had not been keeping tabs on his email and that that was the sole reason for his failure to read the email and the attached hearing invitation.
36. The Tribunal noted that in his reinstatement application, the applicant undertook to check his email regularly for a new invitation. The Tribunal then had regard to the two SMS reminders to attend the hearing on 18 December 2018, which it said were forwarded to the applicant on 11 and 17 December 2018 at 11:00am each time. The Tribunal noted that the reminders were sent to the mobile number provided by the applicant in his application for review and that the record of their transmission did not indicate any failure of delivery. The Tribunal also noted that the applicant had not provided any change or update of his phone number. The applicant made no reference in his reinstatement letter to the SMS messages referred to in the Tribunal’s decision, dated 18 December 2018.
37. Had the applicant checked his email any time between 12 November 2018 and 18 December 2018, the applicant would have been aware of the Tribunal hearing on 18 December 2018. This is again unlike the factual scenario in Kaur, where the Court accepted that Ms Kaur had never received the notification.
38. The preconditions to the exercise of the power under s.362B(1B) of the Act were met in that the Tribunal dismissed the application for review before it pursuant to s.362C of the Act.
39. It is well established that the Tribunal’s exercise of a statutory discretion must be reasonable, see Minister for Immigration and v Li (2013) 249 CLR 332 at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ extracted below; and, Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [17] per Perry J.
1. Minister for Immigration v Li (2013) 249 CLR 332 at [105] per Gageler J:
1. “105. It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason” (Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 at 383-384). Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47]).”
2. Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ:
3. “11. The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.”
a.40. The Tribunal had regard to its decision made on 18 December 2018 to dismiss the review application pursuant to s.362B(1A)(b) of the Act by reason of the failure of the applicant to appear before it. The Tribunal noted that its dismissal decision was given in accordance s.362C(5) of the Act and the applicant was accordingly advised that he may apply for reinstatement within 14 days. The Tribunal then noted in detail the reasons provided by the applicant in support of this reinstatement application but was not persuaded by them. Those reasons are set out in detail above.
b.41. In the circumstances, the exercise of the Tribunal’s discretion on 3 January 2019 refusing the reinstatement application was exercised according to law and would appear to be without error. The Tribunal’s findings were open to it on the evidence and material before it and were based on an evident or intelligible justification and a rational foundation. The Tribunal’s decision was in no way plainly unjust, arbitrary, capricious or lacking in common sense.
c.42. Whilst I make no final determination about whether the decision of the Tribunal was affected by jurisdictional error, none is apparent on the face of the Tribunal’s decision record and none has been identified by the applicant today.
d.43. The ground of the application for judicial review has insufficient prospects of success such that it is not in the interests of justice that time be extended to the applicant.
e.44. I accept that the impact on the applicant of time not being extended is that the applicant does not have an opportunity to have the decision of the Tribunal judicially reviewed on a final basis, but as already stated, in my view, the prospects of this case are so weak that it would not be in the interests of justice to extend time, and an extension of time would indeed be an exercise in futility.
f.45. Accordingly, the application filed on 15 February 2019 should be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 9 May 2019
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