Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 631
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 631
File number: MLG 760 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 18 July 2024 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to seek review of a decision made by a Registrar – where the Registrar dismissed an application seeking reinstatement of a judicial review application – where the judicial review application had previously been dismissed for non-appearance under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application for an extension of time refused. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254, 256
Migration Act 1958 (Cth) ss 360, 360A, 362B, 362C, 379A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05, 21.02, 21.04
Migration Regulations 1994 (Cth) reg 4.21
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
CTT23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 274
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67
Satty v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 982
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 15 July 2024 Place: Melbourne Applicants: The first applicant appeared in person Counsel for the First Respondent: Mr J O’Connell for the first respondent Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
MLG 760 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAMALPREET SINGH
First Applicant
KULWINDER KAUR
Second Applicant
ANMOL SINGH PANDHER
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.The applicants’ application for an extension of time, made orally on 15 July 2024, to seek review of a decision made by a Registrar of this Court on 7 June 2024 is dismissed.
2.The first applicant and the second applicant are to pay the first respondent’s costs of the application fixed in the amount of $1,600.
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 LADHAMS:
INTRODUCTION
On 30 January 2024 a Registrar of this Court dismissed the applicants’ application for judicial review because the applicants failed to appear at a summary dismissal hearing. The applicants sought reinstatement of their judicial review application and on 7 June 2024 the Registrar made orders to the effect that their application was not reinstated. The applicants filed an application to seek review of the Registrar’s decision of 7 June 2024 not to reinstate their application (Registrar Review Application).
The Registrar Review Application was filed out of time and the applicants made an oral application for an extension of time at the hearing. The Court must first determine whether to grant the applicants an extension of time before proceeding to consider the Registrar Review Application.
For the reasons explained below, I have decided not to grant the applicants an extension of time to file the Registrar Review Application.
FACTUAL AND PROCEDURAL BACKGROUND
The applicants applied for Temporary Skill Shortage (Short Term) (Subclass 482) visas on 10 May 2019. A delegate of the Minister made a decision refusing to grant visas to the applicants on 24 July 2019. The applicants sought review of the delegate’s decision by the Administrative Appeals Tribunal (Tribunal) on 11 August 2019.
On 24 March 2023 the Tribunal sent to the applicants an invitation to attend a hearing to be held on 11 April 2023. The invitation was sent to the applicants by email to the email address provided in their application to the Tribunal. The hearing was to take place by videoconference using Microsoft Teams.
The Tribunal case notes indicate that the Tribunal sent two SMS messages, on 31 March 2023 and 6 April 2023 respectively, to the applicants to remind them of the scheduled hearing. The SMS messages were sent to the telephone number recorded in the applicants’ application to the Tribunal.
The applicants did not appear at the hearing on 11 April 2023. The Tribunal hearing record indicates that the Tribunal attempted to call the applicants without success.
On 11 April 2023 the Tribunal made a decision to dismiss the application (Dismissal Decision) under s 362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act). A copy of the Dismissal Decision was sent by email to the applicants on 12 April 2023 to the email address provided in their application to the Tribunal. The cover letter sent with the Dismissal Decision advised the applicants that they may apply in writing for reinstatement of their application by 26 April 2023.
The Tribunal confirmed the Dismissal Decision on 2 May 2023 (Confirmation Decision), in circumstances where the applicants did not apply for reinstatement of their application within 14 days. The Tribunal recorded that the applicants had been advised that they could seek reinstatement of their application within 14 days of receiving the Dismissal Decision and that a failure to do so within that period would result in the confirmation of the Dismissal Decision. The Tribunal found that as the applicants did not apply for reinstatement of their application within the 14 day period, the Tribunal was required to confirm the Dismissal Decision.
The effect of the Confirmation Decision is that the delegate’s decision was taken to be affirmed: s 362B(1F) of the Migration Act.
The applicants filed an application to this Court on 2 May 2023 seeking judicial review of the Dismissal Decision (Judicial Review Application).
Mr Hussan Ahmad Sura of Probity Lawyers filed a notice of address for service on behalf of the applicants on 27 July 2023 giving notice that he had been appointed to act as the lawyer for the applicants.
The Minister filed an amended response on 18 August 2023 seeking an order that the Judicial Review Application be summarily dismissed on the ground that the applicants had no reasonable prospects of success (Summary Dismissal Application).
The matter was listed for the hearing of the Summary Dismissal Application before a Registrar of this Court on 30 January 2024.
There was no appearance by or for the applicants at the hearing of the Summary Dismissal Application and the Minister sought dismissal for non-appearance. The Registrar made an order dismissing the Judicial Review Application under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
The applicants filed an application in a proceeding on 13 February 2024 seeking to set aside the Order made on 30 January 2024 and for the Judicial Review Application to be reinstated (Reinstatement Application). The Reinstatement Application was heard by a Registrar of this Court on 27 March 2024.
The Registrar made the following Order on 7 June 2024 and provided detailed reasons in support of the Order:
1.The application in a proceeding filed 13 February 2024, seeking to set aside the orders of 30 January 2024, be dismissed.
2.There be no personal costs order against Mr Hussan Ahmad Sura of Probity Lawyers.
3.The first and second applicants pay the first respondent’s costs of the application in a proceeding fixed in the sum of $3,000.00.
The applicants filed the Registrar Review Application on 21 June 2024 seeking review of the Registrar’s decision to dismiss the Reinstatement Application. The Registrar Review Application is brought pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
HEARING OF THE REGISTRAR REVIEW APPLICATION
The Registrar Review Application came before me for hearing on 15 July 2024. At the hearing, I advised the first applicant, who was the only applicant who participated in the hearing, that the Registrar Review Application was filed out of time and gave him an opportunity to orally seek an extension of time. The first applicant then orally made an application for an extension of time (Extension of Time Application).
The documents before the Court for the purposes of this application include:
(a)the Judicial Review Application;
(b)the affidavit of the first applicant filed on 2 May 2023 in support of the Judicial Review Application;
(c)the court book filed by the Minister on 1 August 2023;
(d)the amended response filed by the Minister on 18 August 2023;
(e)the Reinstatement Application;
(f)an affidavit of Hussan Ahmad Sura filed on behalf of the applicants on 21 February 2024 in support of the Reinstatement Application;
(g)an outline of submissions filed on behalf of the Minister on 28 February 2024 in relation to the Reinstatement Application;
(h)an outline of submissions filed on behalf of the applicants on 15 March 2024 in relation to the Reinstatement Application;
(i)the Registrar Review Application;
(j)an affidavit of the first applicant filed on 21 June 2024; and
(k)the Minister’s written submissions filed on 10 July 2024.
There is an additional affidavit of the first applicant filed on 13 February 2024, but the reasons of the Registrar indicate that it was not read at the hearing before the Registrar. The first applicant confirmed at the hearing before the Court on 15 July 2024 that the applicants did not rely on that affidavit. There is also an additional outline of submissions filed on behalf of the Minister on 22 January 2024 in support of the Minister’s application for summary dismissal. It is not clear whether or not these submissions were considered at the hearing before the Registrar in relation to the Reinstatement Application. It is unnecessary to refer to them in this judgment because the matters that the Minister relies upon are all referred to in the other outlines of submissions filed by the Minister.
The Court has also had regard to the various orders made in this matter and the reasons given by the Registrar in support of the orders he made in relation to the Reinstatement Application.
In circumstances where the applicants did not file any evidence in relation to the Extension of Time Application, including in relation to the reasons for the delay in filing the Registrar Review Application, I gave the first applicant an opportunity at the hearing to give oral evidence in relation to the Extension of Time Application. The first applicant’s oral evidence is discussed below where relevant.
Both parties had an opportunity to make oral submissions at the hearing in relation to the Extension of Time Application, the Registrar Review Application and the Reinstatement Application, and the merits of the Judicial Review Application. Some of the submissions made by the first applicant relate to matters that are not relevant to the determination of the issues that the Court needs to consider and instead relate to matters that the Court has no power to determine. These include matters such as the closure of the company who sponsored the first applicant in relation to his visa, confusion on behalf of the first applicant as to precisely what the company has done, the first applicant’s study and work in Australia, the applicants’ immigration history and the first applicant’s desire to find another employer and start the journey again. I explained to the first applicant at the hearing the issues that are relevant, and that some of his submissions were not relevant to those issues. In the discussion below, I only address the submissions of the applicants that are relevant to the issues that need to be determined by the Court.
RELEVANT PRINCIPLES
Extension of Time Application
The Court has a discretion to extend the time for the applicants to file the Registrar Review Application. In considering whether to grant the applicants an extension of time, the Court often has regard to matters such as the length of the delay, whether the applicants have a reasonable explanation for the delay, any prejudice to the respondent or other persons, and the merits of the underlying application: see Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley Developments) at 348-349; CTT23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 274 at [19]; Satty v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 982 at [36].
Registrar Review Application
The Registrar, when considering the Reinstatement Application, was determining whether to exercise the power in r 17.05(2)(a) of the GFL Rules to set aside an order made in the absence of the applicants.
The Registrar exercised power delegated pursuant to s 254(1) of the FCFCOA Act. Where a Registrar exercises a power delegated under s 254 of the FCFCOA Act, s 256(1) of the FCFCOA Act allows a party to the proceeding to seek review of the exercise of the power by the Registrar within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court.
Rule 21.02 of the GFL Rules provides that any application for review of the exercise of a power by a Registrar must be made within seven days, although the Court may extend the time to file the application on any terms it thinks fit.
The review of the exercise of a power by a Registrar proceeds by way of a hearing de novo, in which the Court may receive as evidence any affidavit or exhibit tendered before the Registrar and may with leave receive further evidence: r 21.04 of the GFL Rules.
Reinstatement Application
In considering the Extension of Time Application, it is appropriate to consider whether the applicants have reasonable prospects of success in relation to the underlying application, which in this case is the Registrar Review Application. Determining the Registrar Review Application in turn requires the Court to consider the Reinstatement Application. It is therefore convenient to address the relevant principles relating to the Court’s power to order reinstatement of the Judicial Review Application.
The Reinstatement Application effectively asks the Court to set aside the Order made by the Registrar on 30 January 2024 dismissing the Judicial Review Application pursuant to r 13.06(1)(c) of the GFL Rules, which was made in circumstances where the applicants failed to appear at the hearing of the Summary Dismissal Application. The Court has power to set aside this Order under r 17.05(2)(a) of the GFL Rules, which relevantly provides:
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party…
The effect of exercising the power to set aside the Order made by the Registrar on 30 January 2024 is that the Judicial Review Application would be reinstated. The exercise of this power is discretionary and requires the Court to consider whether it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 (FBS18) at [50].
In determining whether reinstatement of the Judicial Review Application is in the interests of justice, it is often appropriate for the Court to consider the matters identified in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. In the present case, it is appropriate to consider:
(a)whether there is a reasonable explanation for non-appearance at the hearing of the Summary Dismissal Application by the applicants or their lawyer at the time;
(b)whether there is any prejudice to the Minister; and
(c)whether the grounds of the Judicial Review Application have reasonably arguable prospects of success.
These matters are not exhaustive and are not a checklist. Rather, they are matters which are consistently considered in the exercise of the Court’s discretion and operate as a guide to the exercise of that discretion: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]; AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32], [42]; FBS18 at [58].
CONSIDERATION OF THE EXTENSION OF TIME APPLICATION
Extent of the delay
The last day for filing the Registrar Review Application within the prescribed timeframe was 14 June 2024. The Registrar Review Application was instead filed on 21 June 2024, meaning that the extent of the delay in this case is seven days.
Explanation for the delay
The first applicant gave oral evidence at the hearing that he is not a lawyer and did not know what to do next when he received the decision of the Registrar. He asked everybody, looked at social media and YouTube, but did not know the exact point when he had to file his documents. When he found out what to do, it was already late.
Counsel for the Minister submitted that confusion about the length of timeframes, and that the applicants did not know what to do and did not know Court processes, does not amount to an adequate explanation for the delay. It was up to the applicants to inform themselves about relevant timeframes. The Minister submitted that this consideration weighs against the grant of an extension of time.
I accept the Minister’s submission that it was a matter for the applicants to inform themselves of the relevant timeframe for filing the Registrar Review Application. I also accept the first applicant’s evidence which suggests that the applicants took some steps to find out what to do next. I observe that the applicants were represented by a lawyer at the time of the Registrar’s decision, and it is not clear from the first applicant’s evidence whether the applicants asked their lawyer about the relevant timeframes and process for seeking review of the Registrar’s decision or whether their lawyer gave them any relevant information about this process. It would have been a more reasonable step to take to find out information about Court processes and timeframes than relying on social media and YouTube.
The prescribed timeframe to file the Registrar Review Application is short and the delay in filing the Registrar Review Application is also short. I am satisfied that the applicants have provided an explanation for the delay that, although it has some gaps, is not completely inadequate. I treat the explanation for the delay as a neutral consideration for the purposes of the Extension of Time Application.
Prejudice to the Minister
The applicants did not make any submissions in relation to the prejudice to the Minister.
The Minister submitted that there is little prejudice to the Minister as a result of the delay other than the significant public interest in the finality of judicial decisions: see Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 at [15]-[17]. The Minister further submitted that the mere absence of prejudice to a respondent does not of itself justify the grant of an extension of time: Hunter Valley Developments at 349.
I accept the Minister’s submissions and I treat the prejudice to the Minister as a neutral consideration for the purposes of the extension of time application.
Merits of the underlying application
The underlying application for the purposes of the Extension of Time Application is the Registrar Review Application, which raises the same considerations as the Reinstatement Application.
For the reasons explained below, I consider that the merits of the underlying application are weak.
Explanation for the non-appearance at the hearing of the Summary Dismissal Application
The applicants were represented by a lawyer at the time of the hearing of the Summary Dismissal Application, which is the occasion on which the Judicial Review Application was dismissed for the applicants’ failure to appear.
I accept that because the applicants were represented at the time, they were not personally required to attend the hearing and it was reasonable for them to expect their lawyer to appear on their behalf. It is therefore appropriate to consider whether the lawyer had a reasonable excuse for not appearing at the hearing.
The evidence in relation to the reasons the lawyer did not appear at the hearing is set out in the affidavit of Mr Sura filed on 21 February 2024. Mr Sura deposed that he could not attend the hearing on 30 January 2024 due to the miscarriage of his wife, which occurred on 11 January 2024. Mr Sura deposed that he was ‘stressful due to the miscarriage’ and requested that the Registrar consider this to be ‘an honest mistake’. Documents were annexed to the affidavit as evidence of the miscarriage.
There are significant gaps in this explanation and, as a lawyer and officer of this Court, Mr Sura ought to know that a more fulsome explanation is required to explain a failure to appear at a hearing. In particular, as submitted by the Minister, Mr Sura’s affidavit does not explain why his wife’s miscarriage, and the claimed stress associated with that event, caused him not to attend the hearing, which was some 19 days after the miscarriage occurred. Nor does it explain why he did not arrange for another lawyer from his firm to represent the applicant at the hearing or seek an adjournment of the hearing or otherwise advise the Court of his inability to attend. I also observe that, if Mr Sura is intending to assert that the miscarriage caused him so much stress that it impacted his ability to function, and that is why he did not attend the hearing, medical evidence to support such an assertion ought to have been provided.
I am, however, mindful that Mr Sura’s failure to attend the hearing is not for any reason that is directly or indirectly attributable to the applicants personally. Despite the significant gaps in Mr Sura’s evidence, I accept that his wife had a miscarriage and I accept that that was a stressful time for him and his family. I accept that it was reasonable for the applicants not to attend the hearing personally if they believed that Mr Sura would appear on their behalf. If the extension of time were granted and I was called upon to exercise my discretion in relation to the Reinstatement Application, I would not place any adverse weight against the applicants on the identified inadequacies in Mr Sura’s evidence relating to his failure to attend the hearing on 30 January 2024. I would treat the explanation for the non-appearance as a neutral consideration.
Prejudice to the Minister if the Judicial Review Application were to be reinstated
The Minister submitted that he incurred costs associated with his appearance before the Court at the hearing on 30 January 2024. The Minister submitted that the prejudice may be relieved to some extent by an award of costs, but only if costs are paid.
I accept that there may be some minimal prejudice to the Minister if the application were reinstated, and that that prejudice could be alleviated by a costs order, provided that the costs order is complied with by the applicants. I do not, however, place any significant weight on this consideration for or against the applicants.
Merits of the Judicial Review Application
The grounds set out in the Judicial Review Application are (reproduced without alteration):
1.I have applied for my Temporary Skill Shortage (class GK) Temporary Skill Shortage (Short Term) (subclass 482) visa which was refused on 24th July 2019
2.I applied for Tribunal review which was dismissed without hearing. in the decision record it was mentioned that I was tried to be contacted whereas I didn’t receive any phone call. My phone was handy with me.
3.I haven’t got fare chance to represent myself. I do believe Honourable Federal circuit court will give me the justice and a fair decision. So, I am putting forth my application in the Federal circuit court to review the decision on the basis of Jurisdictional Error while deciding my case.
4. decision-making power unreasonably and unconscionably
It is not entirely clear from these grounds the jurisdictional errors that the applicants assert. I proceed on the basis that the grounds may be asserting that the applicants were denied procedural fairness, or that the Tribunal acted unreasonably, in dismissing their application in circumstances where the Tribunal either did not call or was unable to establish a phone connection with the applicants on the day of the hearing.
In the Judicial Review Application, the applicants only seek review of the Dismissal Decision. However, for the purposes of assessing the merits of the Judicial Review Application I also consider whether there are any reasonable prospects of establishing jurisdictional error in relation to the Confirmation Decision.
I address these issues in the context of considering what the Tribunal was required to do and what the Tribunal did.
In making the Dismissal Decision, the Tribunal exercised one of the discretions available to it in s 362B of the Migration Act.
The Tribunal’s discretion to dismiss an application under s 362B(1A)(b) of the Migration Act is enlivened where an applicant is invited under s 360 of the Migration Act to appear before the Tribunal but does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear: s 362B(1) of the Migration Act. I am satisfied that that the conditions precedent to the exercise of the Tribunal’s discretion were met in the present case.
The applicants were invited to attend a hearing in accordance with s 360 of the Migration Act. The notice of the invitation to attend a hearing sent to the applicants on 24 March 2023 complied with the requirements of s 360A of the Migration Act because:
(a)the invitation indicated the day on which, and the time and place (in this case, via Microsoft Teams) at which, the hearing was to take place, as required by s 360A(1) of the Migration Act;
(b)the invitation was given to the applicants by email, using the email address in their application to the Tribunal, which was the last email address provided by the applicants in connection with the review. This is a method of giving a document to a person other than the Secretary set out in s 379A(5) of the Migration Act, and the invitation was therefore given to the applicants by one of the methods specified in s 379A of the Migration Act, as required by s 360A(2) of the Migration Act;
(c)the invitation was given to the applicants on 24 March 2023 in respect of a hearing listed on 11 April 2023. The period of notice exceeded the period of 14 days prescribed in reg 4.21 of the Migration Regulations 1994 (Cth) and the Tribunal therefore complied with s 360A(4) of the Migration Act; and
(d)the invitation included a statement setting out what may happen if the applicants failed to appear at the hearing and I am satisfied that this is a statement to the effect of s 362B of the Migration Act, as required by s 360A(5) of the Migration Act.
There is no dispute between the parties that the applicants failed to appear at the hearing.
As indicated above, the power in s 362B(1A)(b) of the Migration Act is a discretionary power. The discretionary power is conferred on the Tribunal on the implied condition that it be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [4] (Kiefel CJ), [80], [89] (Nettle and Gordon JJ), [131] (Edelman J).
The Tribunal’s reasons for making the Dismissal Decision include the following reasons set out at [2] of its reasons for the Dismissal Decision:
The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal made several attempts to contact the person to no avail. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5), and the invitation has not been returned to sender. The Tribunal is also satisfied that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
The Tribunal’s reasons are supported by the evidence before the Court. The Tribunal hearing record, which serves as a record of what occurred at the hearing before the Tribunal, includes a handwritten notation which refers to a time, which was the scheduled start time for the hearing, and refers to the words ‘cannot leave message for nominee’. In the context of this matter, I interpret that as an indication that the Tribunal attempted to contact the applicants and was not able to leave a message. The case notes kept by the Tribunal indicate that the Tribunal sent two SMS messages, on 31 March 2023 and 6 April 2023 respectively, to the mobile number recorded in the application to the Tribunal.
There is nothing in the court book to indicate that the applicants contacted the Tribunal or took any active steps in the proceeding after making the application.
I am satisfied that the Tribunal gave an intelligible justification for making the Dismissal Decision and that the decision was within the area of the Tribunal’s decisional freedom. There is nothing unreasonable in the Dismissal Decision.
Insofar as the applicants refer to the Tribunal’s mention of the attempt to call them by phone, this does not disclose any unreasonableness in the Tribunal decision or any denial of procedural fairness. The Tribunal was under no obligation to attempt to contact the applicants, as a matter of procedural fairness or in accordance with the implied obligation to exercise its discretions reasonably. The Tribunal took the additional step in attempting to call the applicants, and the applicants failed to answer. It was reasonable for the Tribunal to dismiss the application without making further attempts to contact the applicants by telephone.
In circumstances where the Tribunal complied with its procedural fairness obligations in Division 5 of Part 5 of the Migration Act in respect of the Dismissal Decision and where no unreasonableness is demonstrated in the Dismissal Decision, there is no realistic prospect that the matters raised in the grounds set out in the Judicial Review Application will give rise to jurisdictional error in the Dismissal Decision.
The Tribunal made a written statement that set out the Dismissal Decision, the reasons for the Dismissal Decision and the time and date at which the statement was made, as required by s 362C(2) of the Migration Act.
The Tribunal notified the applicants of the Dismissal Decision on 12 April 2023 by giving them a copy of the written statement by sending it by email to the most recent email address provided by the applicants in connection with the review. This was in compliance with s 362C(5) of the Migration Act, which required the Tribunal to notify the applicants of the Dismissal Decision by giving them a copy of the written statement within 14 days after the day on which the Dismissal Decision was made and by one of the methods in s 379A of the Migration Act. The Tribunal was also required, by s 362C(6) of the Migration Act, to give the written statement to the applicants together with a statement describing the effect of ss 362B(1B) to (1F) of the Migration Act. These subsections relate to the right of an applicant to seek reinstatement of a decision to dismiss the application within 14 days of receiving notice of the decision to dismiss the application and the options of the Tribunal if an application for reinstatement is made and if there is no application for reinstatement within the 14 day period.
The cover letter sent to the applicants on 12 April 2023 clearly indicated that they may apply, in writing, for reinstatement of the application by 26 April 2023, which correctly identified the 14 day period during which they could seek reinstatement. The Tribunal also included a fact sheet containing information about dismissal of applications and I am satisfied that the information in this fact sheet includes a statement to the effect of ss 362B(1B) to (1F) of the Migration Act.
The applicants in the present case did not apply to the Tribunal for reinstatement of their application. Pursuant to s 362B(1E) of the Migration Act, in circumstances where the applicants did not apply for reinstatement within 14 days of being notified of the Dismissal Decision, the Tribunal was required to confirm the decision to dismiss the application. Therefore, the Confirmation Decision was the only decision that was open to the Tribunal. The Tribunal recognised this in its reasons for the Confirmation Decision.
In all the circumstances, the applicants have no reasonably arguable prospects of being able to establish jurisdictional error in the Confirmation Decision.
The merits of the Judicial Review Application are weak and the applicants have no reasonably arguable prospects of succeeding in their Judicial Review Application if it were to be reinstated. This consideration weighs heavily against the applicants’ prospects of success in relation to the Reinstatement Application and, in turn, the Registrar Review Application.
Conclusion in relation to the merits of the underlying application
The underlying Registrar Review Application has no reasonable prospects of success. Even though I have considered the explanation for the failure to appear at the hearing of the Summary Dismissal Application and the prejudice to the Minister if the application is reinstated to be neutral considerations, the weak merits of the Judicial Review Application weigh heavily against the reinstatement of that application.
Conclusion in relation to the Extension of Time Application
Taking into account the reasons outlined above, I do not consider that it is in the interests of justice to grant the applicants an extension of time to file the Registrar Review Application. While the delay is short, and the explanation for the delay and any prejudice to the Minister are neutral considerations in this matter, the lack of merit in the underlying Registrar Review Application weighs heavily against the grant of an extension of time and is the determinative consideration in this matter.
CONCLUSION
For these reasons, the Extension of Time Application must be dismissed.
The Minister seeks an order that the first applicant and the second applicant pay the Minister’s costs of the Extension of Time Application (and the Registrar Review Application), fixed in the amount of $1,600. The first applicant was given an opportunity to make submissions in relation to costs and chose not to make any submissions. I am satisfied that it is appropriate that costs follow the event and the quantum of costs claimed by the Minister is appropriate.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 18 July 2024
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