Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 879
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 879
File number: MLG 3777 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 4 October 2023 Catchwords: PRACTICE AND PROCEDURE – application for reinstatement pursuant to r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – where applicant’s application for an extension of time for judicial review was dismissed for non-appearance – whether applicant and representative have reasonable excuse for not attending hearing of application for extension of time – whether application for extension of time has reasonable prospects of success – application for reinstatement dismissed. Legislation: Migration Act 1958 (Cth) ss 116, 140, 359, 359A, 359AA, 360, 360A, 375A, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06, 17.05
Federal Circuit Court Rules 2001 (Cth) r 44.05
Cases cited: AMF15 v Minister for Immigration and Citizenship (2016) 241 FCR 30; [2016] FCAFC 68
AWX16 v Minister for Immigration and Anor [2016] FCCA 928
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Minister for Immigration and Border Protection v Singh (2016) FCR 305; [2016] FCAFC 183
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
MZZBM v Minister for Immigration and Citizenship [2013] FCCA 321
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 643
SZRJY v Minister for Immigration and Citizenship (No 2) [2012] FMCA 756
SZTOY v Minister for Immigration and Citizenship [2015] FCCA 2314
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
WZARX v Minister for Immigration and Border Protection [2014] FCA 423
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 6 September 2023 Place: Perth Counsel for the Applicant: Mr I Warraich Solicitor for the Applicant: Huk Legal Counsel for the First Respondent: Mr J Mintz Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 3777 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
4 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed on 18 August 2023 is dismissed.
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 21 July 2023 I dismissed the applicant’s application for an extension of time for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) affirming an earlier decision made by a delegate of the Minister to cancel the applicant’s Class UC (Subclass 457) Temporary Work visa (visa). The application was dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) in circumstances where the applicant failed to appear, either for himself or via his lawyer, at the hearing of his extension of time application.
By an application in a proceeding filed on 18 August 2023, the applicant seeks that his extension of time application be reinstated (reinstatement application). It is that reinstatement application that is now to be determined by the Court.
For the reasons explained below, I have decided that it is not in the interests of justice to reinstate the application for an extension of time to seek judicial review of the Tribunal decision.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
Visa grant
The applicant was granted the visa on 26 June 2017 while he was offshore. The applicant was granted the visa as a member of the family unit of his then wife (primary visa applicant). The applicant entered Australia on 24 August 2017.
Visa cancellation
On 13 October 2017 the Minister’s Department was advised that the applicant’s relationship with the primary visa applicant had ended.
On 2 November 2017 the Department sent to the applicant a Notice of Intention to Consider Cancellation under s 116 of the Migration Act 1958 (Cth) (Migration Act). The Notice gave the applicant the opportunity to comment on the ground of cancellation in s 116(1)(a) of the Migration Act, namely, that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists. The particulars of the ground for cancellation advised the applicant that his visa had been granted on the basis of his spousal relationship with the primary visa applicant and, as the relationship with the primary visa applicant had broken down, the circumstances under which the applicant was granted the visa no longer existed, specifically, the applicant was no longer a member of the family unit of the primary visa applicant.
The applicant responded to the Notice by way of a statement provided to the Department on 15 November 2017.
On 4 December 2017 a delegate of the Minister cancelled the applicant’s visa pursuant to s 116(1)(a) of the Migration Act.
Review by the Tribunal and Tribunal decision
The applicant applied to the Tribunal for merits review of the delegate’s decision on 11 December 2017. On 10 July 2018 the Tribunal invited the applicant to provide information about whether he was still in a relationship with the primary visa applicant. The information was to be provided by 24 July 2018. On 23 July 2018 the applicant requested more time to provide information and the Tribunal granted the applicant an extension of time until 7 August 2018. The applicant provided information to the Tribunal by email on 7 August 2018.
On 8 August 2018 the Tribunal sent to the applicant an invitation to attend a hearing on 3 September 2018. The applicant attended the hearing and provided documents to the Tribunal at the hearing.
On 5 October 2018 the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.
The Tribunal found that a ground for cancellation in s 116(1)(a) of the Migration Act existed. This was because the applicant was granted the visa on the basis of being a spouse and a member of the family unit of the primary visa applicant, and that was a circumstance that no longer existed, as the relationship broke down approximately two weeks after the applicant arrived in Australia. Accordingly, the decision to grant the visa was based wholly or partly on a particular fact or circumstance that was no longer the case or no longer existed.
The Tribunal correctly identified that the ground in s 116(1)(a) does not require mandatory cancellation of the applicant’s visa and that the Tribunal had a discretion to determine whether the visa should be cancelled. In exercising that discretion, the Tribunal had regard to the circumstances of the case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The Tribunal considered the purpose of the applicant’s travel and stay in Australia. The Tribunal noted that the applicant was granted the visa as a secondary applicant and that the purpose of the visa was to enable the applicant to remain with the primary visa applicant. The Tribunal found that the applicant would not be able to fulfil the purpose of his visa as he was no longer in a relationship with the primary visa applicant. The Tribunal placed particular weight on this factor.
The Tribunal considered the extent of the applicant’s compliance with visa conditions and accepted that there were no known instances of non-compliance with visa conditions.
In considering the degree of hardship that may be caused by the visa cancellation, the Tribunal accepted that the applicant incurred debt as a result of loans taken out during his relationship with the primary visa applicant but found that he would still owe the outstanding loan amount regardless of whether his visa was cancelled, and he would have the support of his family if he returned to India.
In considering the circumstances in which the ground for cancellation arose, the Tribunal accepted that the visa cancellation arose from the breakdown of the applicant’s relationship with the primary visa applicant.
The Tribunal acknowledged that nothing adverse was known about the applicant’s past and present behaviour toward the Department. The Tribunal was satisfied that there were no persons whose visa would be subject to consequential cancellation under s 140 of the Migration Act.
The Tribunal also considered whether there would be mandatory legal consequences as a result of the cancellation of the applicant’s visa. The Tribunal acknowledged that if the applicant’s visa was cancelled and he was not granted another visa, he may become an unlawful non-citizen and may be detained but did not consider that he would be detained indefinitely. The Tribunal further acknowledged that the cancellation of the applicant’s visa may make the applicant subject to possible removal from Australia and an exclusion period in relation to some future visa applications. However, the Tribunal also noted that there are no provisions in the Migration Act which prevent the applicant from making a valid visa application without the Minister’s intervention.
The Tribunal was satisfied that Australia’s non-refoulement obligations would not be breached as a result of the visa cancellation.
The Tribunal acknowledged that it would not be easy for the applicant to re-establish his life in India but also noted that since the breakdown of his relationship, the applicant had not formed any significant ties in Australia, was not involved in any course of study and was not engaged in permanent employment.
Considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled.
PROCEDURAL STEPS IN RELATION TO EXTENSION OF TIME APPLICATION AND REINSTATEMENT APPLICATION
I have already set out some of the procedural history of the application before the Court in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 643 (Singh). The application for an extension of time for judicial review was filed on 12 December 2018. The applicant was self-represented at the time he filed his application, but he has been represented by Mr Imran Warraich of Huk Legal since 27 February 2020. The application was not amended, nor were any documents filed on behalf of the applicant other than a notice of address for service, during the approximately three and a half years between when Mr Warraich went on the record for the applicant and when I dismissed the application on 21 July 2023. This is the case notwithstanding that orders of this Court made on 27 October 2020 required the applicant to file any amended application, any supplementary court book, any further affidavit or other evidence in relation to the extension of time application and written submissions 28 days before the hearing.
The hearing on 21 July 2023 was conducted by video via Microsoft Teams. When there was no appearance by or on behalf of the applicant, my associate attempted to contact Mr Warraich, but those attempts were unsuccessful. For the reasons given in Singh, I was satisfied that it was appropriate to dismiss the application for non-appearance.
On 18 August 2023 the applicant filed the reinstatement application, which was supported by an affidavit deposed by the applicant. Mr Warraich continues to represent the applicant.
HEARING OF THE REINSTATEMENT APPLICATION
The reinstatement application came before the Court for hearing on 6 September 2023. Mr Warraich appeared for the applicant and Mr Mintz appeared for the Minister.
The evidence before the Court for the purposes of the reinstatement applicant comprises an email sent from Mr Warraich to my associate at 10.50am (AWST) on 21 July 2023 (exhibit 1), the court book (exhibit 2) and the affidavit of the applicant filed on 18 August 2023, which was read without objection.
I have also had regard to other documents on the Court file that the parties identified as relevant to the reinstatement application, including the application for the extension of time for judicial review of the Tribunal decision, the Minister’s written submissions filed ahead of the extension of time hearing on 21 July 2023 and my judgment in Singh delivered on 21 July 2023.
REINSTATEMENT APPLICATION
Power to reinstate and relevant principles
The Court has the power to set aside the order dismissing the extension of time application, thereby reinstating that application, pursuant to r 17.05(2) of the GFL Rules, which relevantly provides:
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 power to set aside the orders made on 21 July 2023 is a discretionary power. In deciding whether or not to exercise that discretion in favour of the applicant, the overriding principle is whether it would be in the interests of justice to set aside orders made in the applicant’s absence: SZRJY v Minister for Immigration and Citizenship (No 2) [2012] FMCA 756 at [15]. In considering whether to exercise the discretion, the Court will ordinarily have regard to matters such as:
(a)whether there is a reasonable excuse for the applicant’s absence;
(b)the existence and nature of any prejudice that might flow to the Minister from the reinstatement of the extension of time application, and how any such prejudice may be alleviated; and
(c)whether, if reinstated, the extension of time application has reasonable prospects of success: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7].
These matters are not, however, mandatory relevant considerations: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [52]-[53].
Does the applicant have a reasonable excuse for not attending the hearing on 21 July 2023?
There are two documents before the Court that are relevant to whether the applicant (or, in this case, his lawyer) has a reasonable excuse for not attending the hearing on 21 July 2023.
The first is exhibit 1, which is an email sent from Mr Warraich to my associate on 21 July 2023, 50 minutes after the scheduled start time for the hearing. That email reads:
Dear Associate,
I have been trying my best to join the hearing but due to some technological issues could not join.
Please adjourn the meeting for other time if possible.
Thanking you in anticipation.
By the time this email was sent to the Court, orders dismissing the application had been made, ex tempore reasons for judgment had been delivered and the Court had adjourned for the day.
The second document addressing the applicant’s explanation for the failure to attend the hearing on 21 July 2023 is his affidavit filed on 18 August 2023. The applicant deposed:
I do declare that my lawyer couldn’t join the hearing on 21 July 2023 due to technological issues.
Counsel for the Minister submitted that the applicant’s excuse for non-appearance is ‘vague and unsupported by evidence’. I accept this submission.
The most probative evidence is exhibit 1, but at its highest, this document shows that the applicant’s lawyer represented to the Court, 50 minutes after the scheduled time for the hearing, that he was having technological issues that prevented him from joining the hearing. The explanation in the applicant’s affidavit is entirely lacking in meaningful detail and the applicant has not identified the source of his knowledge. I give the explanation little weight. The evidence collectively does not identify the attempts made by Mr Warraich to join the hearing, the time at which those attempts were made, the nature of the technological issues he experienced, or whether any attempts were made to contact the Court in a timely manner to advise that he could not connect to the hearing. In regard to the latter point, I do not consider that contacting the Court 50 minutes after the scheduled start time for the hearing amounts to timely notification of the difficulties connecting. Further, as Mr Mintz submitted at the hearing, in my judgment in Singh, I identified that my associate attempted to contact Mr Warraich and his firm by phone. The evidence before the Court does not address why those calls were not answered.
At the hearing, I expressed concerns, similar to those expressed above, about the inadequacy of the explanation, Mr Warraich submitted from the bar table that he and the applicant had been trying to connect from different locations and were ‘waiting in desperation’ that they might connect with the Court. The submissions made from the bar table about the explanation for the delay were not helpful and were appropriately summarised by Mr Mintz as raising more questions than they answered.
I accept that the applicant has provided some explanation for not attending the hearing on 21 July 2023, although the lack of meaningful detail in the explanation means that I cannot be satisfied that it is a sufficient explanation.
Does the Minister face any prejudice if the application is reinstated?
The Minister appropriately concedes that he would not face any prejudice as a result of the reinstatement of the extension of time application that could not be remedied by a costs order.
If reinstated, would the extension of time application have reasonable prospects of success?
It is appropriate to consider whether, if reinstated, the application for an extension of time to seek judicial review of the Tribunal decision would have reasonable prospects of success. It is not in the interests of justice to reinstate an application that has no reasonable prospects of success: see, for example, MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18]; CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4].
At the hearing of the reinstatement application, I invited Mr Warraich to address whether the extension of time application would have reasonable prospects of success. Mr Warraich acknowledged that the applicant had not provided any concrete evidence regarding the delay in making the application and submitted that he was therefore not sure about the success of the extension of time application. He submitted that if the extension of time was granted, it might be a last opportunity for the applicant to present his case and address all the concerns.
Mr Mintz submitted that the extension of time application does not have reasonable prospects of success. He made oral submissions about the extension of time factors, including the merits of the proposed judicial review application at an impressionistic level, which were consistent with the written submissions filed on behalf of the Minister on 7 July 2023. I address these submissions in the context of the discussion below.
Relevant considerations in deciding whether to grant an extension of time
Section 477(2) of the Migration Act allows the Court the power to extend the time frame within which the applicant is required to file an application for judicial review of the Tribunal’s decision before this Court if the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension.
There are no prescribed factors to which the Court is required to have regard in determining whether it is necessary in the interests of the administration of justice to grant an extension of time. The Court will, however, ordinarily have regard to factors such as the length of the delay, whether the applicant has an adequate explanation for the delay, whether the respondents would face any prejudice if an extension of time were granted and the merits of the proposed substantive application: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28 (Katoa) at [12], [17]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [39]-[40], [49] (Gordon, Edelman and Steward JJ).
Length of the delay
The Tribunal decision was made on 5 October 2018. Pursuant to s 477(1) of the Migration Act, the applicant was required to file his application to the Court within 35 days of the date of the Tribunal decision, namely, by 9 November 2018. The applicant filed his application for judicial review on 12 December 2018, which is 33 days outside of the prescribed time period.
The Minister submitted and I accept that the delay is significant.
Explanation for the delay
In his application to this Court filed on 12 December 2018, the applicant set out the following grounds in relation to the application for an extension of time:
1.I didn’t have enough money to lodge the application within time.
2.I have been finding lawyer and proper advice to decide the future course of action.
3.I have been going through trivial time of life due to financial and personal crisis.
These grounds are not supported by evidence, notwithstanding that the applicant was required under r 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), which applied at the time of application, to file an affidavit in support of his application which was to include evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension of time. The affidavit that the applicant filed with his originating application simply annexed a copy of the Tribunal decision and did not address the extension of time application.
In the absence of evidence, there is little prospect of the Court finding that the applicant has an adequate explanation for the delay. In relation to the grounds set out in the application, the Court observes that:
(a)Lack of funds to file a judicial review application is not of itself an acceptable explanation for the delay: see MZZBM v Minister for Immigration and Citizenship [2013] FCCA 321 at [27].
(b)While the Court understands that the applicant may have wanted to seek legal advice or representation, there is no right to legal representation in migration proceedings: see WZARX v Minister for Immigration and Border Protection [2014] FCA 423 at [13]; AMF15 v Minister for Immigration and Citizenship (2016) 241 FCR 30; [2016] FCAFC 68 at [51]. A lack of legal representation is not of itself an adequate explanation for the delay: see SZTOY v Minister for Immigration and Citizenship [2015] FCCA 2314 at [15]; AWX16 v Minister for Immigration and Anor [2016] FCCA 928 at [45(d)].
(c)No meaningful details are provided in relation to the ‘trivial time of life due to financial and personal crisis’ that the applicant claims to have experienced and the Court cannot therefore conclude that this might amount to an adequate explanation for the delay.
Prejudice to the Minister
The Minister concedes that there is no prejudice that he would suffer if the extension of time is granted that could not be addressed through an order for costs.
Merits of the proposed judicial review application
It is often appropriate to consider the merits at a reasonably impressionistic level, although the Court is not necessarily confined to assessing the merits at this level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62]-[63]; Katoa at [17]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [49] (Gordon, Edelman and Steward JJ).
The application set out the proposed grounds of judicial review:
1.The Tribunal made a Jurisdictional error whilst making a decision on application.
2.The AAT member failed to consider all the aspects of the appeal and observe principles of natural justice.
(a).In considering whether the visa applicant met the visa grant criteria required by the regulations, the Tribunal member failed to fully consider the fact that the circumstances of the case were beyond the applicant's control.
(b).The visa applicant was not at fault and yet was affected by exceptional circumstances.
Ground 1
Ground 1 is nothing more than a general assertion that the Tribunal made a jurisdictional error in its decision. The applicant does not identify any basis on which he says that the decision is affected by jurisdictional error in the ground and neither he nor his lawyer made any submissions about the ground. As pleaded, this ground has no meaningful prospects of success.
In circumstances where I have concerns that the applicant may not have been well-served by his lawyer (noting the failure to comply with Court orders referred to at [23] above), I have considered for myself, at a reasonably impressionistic level, whether there might be any reasonably arguable basis upon which the applicant might be able to assert jurisdictional error in the Tribunal decision, I have not identified any such basis. In addition to the matters discussed in the context of ground 2 below, I observe that the Tribunal correctly identified the issues before it and provided reasons for its decision that are logical and rational.
Ground 2
Again, the applicant did not advance submissions in relation to this ground. The Minister submitted that the ground lacks particulars and may be dismissed on that basis.
The Minister further submitted that there were no prescribed circumstances to be considered pursuant to ss 116(2) or 116(3) of the Migration Act and the discretionary power to cancel the applicant’s visa had to be considered taking into account the circumstances of the applicant. In considering the exercise of the discretion, the Tribunal took into account the Department’s PAM 3 Guidelines. The Minister noted the limited submissions made by the applicant to the Tribunal and submitted that the Tribunal considered the applicant’s evidence and submissions, including the evidence regarding the debts and his financial situation. The Minister submitted that after considering and weighing the various matters before it, the Tribunal was satisfied that reasons in favour of cancelling the visa outweighed the reasons not to cancel the visa and gave proper genuine and realistic consideration to the evidence before it.
I have had regard to the submissions advanced by the applicant to the Department and the Tribunal, as well as the Tribunal’s reasons for decision. I have not identified any relevant submission or relevant evidence that the Tribunal did not consider. It is unclear what the applicant means by asserting in ground 2 that the circumstances of the case were ‘beyond his control’, that he was ‘not at fault’ and that there were ‘exceptional circumstances’. In the absence of any explanation by the applicant in relation to this, it is difficult to find that the ground could have any realistic prospects of success. In any event, if, by these phrases, the applicant is asserting that the Tribunal should have had regard to his evidence that it was the primary visa applicant’s choice to end the relationship, that she did not wish to reconcile with him and that he incurred debts to provide for her financially, the Tribunal was plainly aware of these matters and referred to them at [12], [15], [18]-[21] and [31]-[32] of its reasons.
I otherwise accept the Minister’s submission that there were no prescribed circumstances for the Tribunal to consider, and that it was acceptable for the Tribunal to have regard to the matters in the PAM3 Guidelines. In circumstances where:
(a)the Tribunal had regard to all relevant submissions and evidence given by the applicant;
(b)there were not prescribed circumstances to take into account;
(c)the Tribunal considered the matters raised in the PAM3 Guidelines and ‘the totality of the applicant’s circumstances’ in reaching its decision (see [37] of Tribunal’s reasons); and
(d)the applicant has not identified in any meaningful way the evidence or submission that he gave to the Tribunal and which he says the Tribunal overlooked,
the applicant’s ground does not have any meaningful prospects of success insofar as it asserts that the Tribunal failed to consider all aspects of his claim.
The Minister also made submissions on the ground to the extent that it asserts that the Tribunal failed to observe the principles of natural justice. The Minister submitted that the Tribunal invited the applicant to a hearing in accordance with ss 360 and 360A, and there was no information which the Tribunal was required to put to the applicant in accordance with s 359A of the Migration Act.
The Minister also referred to a certificate issued under s 375A of the Migration Act, which covered information relating to the primary visa applicant applying for an intervention order against the applicant and her reporting to the Department of the breakdown of the spousal relationship. The Minister acknowledged that it does not appear that the Tribunal disclosed the existence of the certificate to the applicant, but submitted that disclosing the existence of the certificate could not realistically have resulted in a different outcome because the applicant informed the Tribunal of the existence of the intervention order, provided details of the breakdown of his spousal relationship and was aware of the substance of the information covered by the certificate.
Having reviewed the court book and the Tribunal decision, I am unable to ascertain any basis on which the applicant would be able to advance a ground based on a denial of natural justice that would have reasonable prospects of success. The Tribunal invited the applicant to provide information pursuant to s 359 of the Migration Act and gave him 14 days to reply, before extending the time by an additional 14 days at the request of the applicant. The Tribunal invited the applicant to appear at a hearing to give evidence and present arguments, as required by s 360 of the Migration Act, and the notice of the invitation sent to him on 8 August 2018 complied with the requirements in s 360A of the Migration Act. The applicant has not identified anything, and there is nothing obvious in the materials before the Court, to suggest that the invitation to attend a hearing was not a real and meaningful one. Like the Minister’s lawyers, I have not identified any information that was required to be put to the applicant pursuant to s 359A or s 359AA of the Migration Act.
The Tribunal had a procedural fairness obligation to disclose the existence of the s 375A certificate to the applicant: Minister for Immigration and Border Protection v Singh (2016) FCR 305; [2016] FCAFC 183 at [54], [58]. There is no transcript of the Tribunal hearing in evidence before the Court, so I am unable to make any finding as to whether the existence of the certificate was disclosed to the applicant, but I acknowledge that there is no evidence before the Court to show that it was disclosed. It is possible that, if the extension of time application were reinstated and the extension of time granted, the applicant may have available to him a reasonable argument that the Tribunal denied him natural justice by failing to disclose the existence of the s 375A certificate.
However, such an error would only amount to jurisdictional error if it was material. In circumstances where the relevant information covered by the certificate that was relied on by the Tribunal, namely that the relationship had ended and the primary visa applicant had sought an intervention order against the applicant, was also provided to the Tribunal by the applicant, it is difficult to see the basis on which the applicant might argue that any failure by the Tribunal to disclose the existence of the certificate could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45] (Bell; Gageler and Keane JJ). Therefore, any assertion that that the applicant may make to the effect that the Tribunal denied him natural justice in relation to the s 375A certificate appears to have weak prospects of success.
Conclusion in relation to the prospects of success of the extension of time application, if it were to be reinstated
Taking into account the matters considered above, and in particular:
(a)the extent of the delay, which at 33 days is significant but not extreme;
(b)the absence of any evidence to explain the delay, despite the fact that the applicant had ample time, and was required by Court orders and the relevant Court rules, to file evidence in relation to the extension of time application;
(c)the weak explanation for the delay set out in the grounds; and
(d)the weak prospects of success of the judicial review application, when considered at a reasonably impressionistic level, albeit in greater detail than advanced by the applicant,
the extension of time application, if reinstated, would not have any reasonable prospects of success.
Balancing of factors relevant to the reinstatement application
I have found above that:
(a)while some explanation has been given for the non-appearance by or on behalf of the applicant at the hearing on 21 July 2023, this explanation is lacking in relevant detail and is insufficient;
(b)if the application for an extension of time is reinstated, there would be no prejudice to the Minister that could not be mitigated by an appropriate costs order; and
(c)the extension of time application, if reinstated, would not have reasonable prospects of success.
Balancing and weighing these factors, I do not consider that it is in the interests of justice to reinstate the extension of time application. While I am concerned about the inadequacies in the explanation of the non-appearance at the hearing on 21 July 2023, I place limited weight on this factor. I place significant weight on the lack of reasonable prospects of success in relation to the extension of time application, if it were reinstated. As stated above, there is no utility in reinstating an application that does not have reasonable prospects of success.
CONCLUSION
For the reasons articulated above, it is not in the interests of justice to reinstate the extension of time application and the reinstatement application is therefore dismissed.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 4 October 2023
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