SZVXH v Minister for Immigration
[2017] FCCA 458
•14 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVXH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 458 |
| Catchwords: EXTENSION OF TIME – Whether time should be extended to applicant to file an application for judicial review – whether the Administrative Appeals Tribunal erred in finding that it was functus officio at the time it received a request from the applicant at 1:38pm on 19 September 2012 to re-open his case and provide an opportunity to attend a further hearing – whether the Administrative Appeal Tribunal’s decision made on 19 September 2012 at 1:38pm was beyond recall at the time it received the applicant’s request – whether the Administrative Appeals Tribunal’s decision dated 17 September 2012 to proceed on the review without taking further action to enable or allow the applicant to appear before it after the applicant failed to arrive at the hearing on the third occasion was legally unreasonably – whether the Tribunal properly exercised its discretion under section 426A of the Migration Act 1958 (Cth) to proceed on the review without taking any further action to allow or enable the applicant to appear before it after the applicant failed to appear at the hearing – whether the applicant’s explanation for the delay of 26 months is satisfactory – extension of time refused to seek judicial review of the decision of the Administrative Appeals Tribunal dated 17 September 2012. |
| Legislation: Migration Act 1958 (Cth), ss.414, 415, 425, 426A, 430, 430A, 477 Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Re Commonwealth; Ex Parte Marks (2000) 177 ALR 491 Minister for Immigration & Citizenship v SZQOY (2012) 206 FCR 25 Minister for Immigration & Citizenship v SZRNY (2013) 214 FCR 374 Semunigus v Minister for Immigration an Multicultural Affairs (2000) 96 FCR 533 Batagol v Federal Commissioner of Taxation (1963) 109 CLR 243 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439 Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 SZHDC v Minister for Immigration and Multicultural Affairs [2006] FCA 600 Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51 |
| Applicant: | SZVXH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3611 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 28 July 2016 |
| Date of Last Submission: | 20 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2017 |
REPRESENTATION
| Counsel for Applicant: | Mr Hamish Bevan (Pro Bono) |
| Counsel for the First Respondent: | Mr Bora Kaplan |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3611 of 2014
| SZVXH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) to seek judicial review of two decisions of the then Refugee Review Tribunal (“the Tribunal”).
The first decision was dated 17 September 2012 and affirmed the decision of a delegate of the first respondent to refuse the applicant a protection visa (“the Delegate”). The Tribunal exercised its discretion under s.426A of the Act to proceed to make its decision on the review without taking any further action to allow or enable the applicant to appear before it.
The second decision was made at 1.38pm on 19 September 2012 when the Tribunal refused the applicant’s request to re-open his case.
It is common ground that the applicant should have applied for review of the Tribunal’s decisions by 22 October 2012. However, the application for review by the Tribunal was not lodged until 23 December 2014. Plainly, a delay of some 26 months is substantial.
Pursuant to s.477(1) of the Act an application for judicial review of a migration decision must be made within 35 days of the date of the migration decision.
However, pursuant to s.477(2) of the Act, the Court may extend time to the applicant if it is satisfied that “it is necessary in the interests of the administration of justice” to do so. Relevant considerations in determining whether to extend time include the applicant’s explanation for the delay, the prospects of success of the applicant’s application and any prejudice to the first respondent (see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J). The first respondent did not suggest that the first respondent would suffer any prejudice by any extension of time. There is, of course, a public interest in the finalisation of administrative decisions (see Re Commonwealth; Ex Parte Marks (2000) 177 ALR 491).
In considering whether time should be extended, I propose to deal first with the prospects of success and then delay and utility.
Relevant background
The applicant claims to be a citizen of China who fears harm from the Chinese authorities by reason of his association with an illegal Church in China.
On 7 December 2011, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 3 April 2012, the Delegate invited the applicant to attend an interview. The applicant did not attend the interview as scheduled.
On 24 April 2012, the Delegate refused the applicant’s application for a protection visa.
On 28 May 2012, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 18 July 2012, the Tribunal wrote to the applicant inviting him to attend a hearing on 14 August 2012. On 14 August 2012, the applicant attended the hearing 20 minutes after the scheduled commencement time. However, due to concerns about the adequacy of the interpreting service, the hearing was rescheduled.
On 15 August 2012, the Tribunal invited the applicant to attend a rescheduled hearing on 6 September 2012.
On 6 September 2012, the applicant attended the hearing 45 minutes after the scheduled commencement time. By that time, the interpreter had been excused.
On 7 September 2012, the Tribunal wrote again to the applicant inviting him to attend a hearing on 17 September 2012. The applicant did not respond to that hearing invitation.
On 17 September 2012, the applicant failed to attend the scheduled hearing. Accordingly, the Tribunal decided to proceed to make its decision on the review application without taking any further action to enable or allow the applicant to appear before it. Ultimately, the Tribunal affirmed the decision under review.
On 19 September 2012, the following steps were taken:
i)At 1:00pm, the Tribunal sent to the Department an electronic communication, notifying it that a decision had been made on the applicant’s application for review and that the Tribunal had decided to affirm the Delegate’s decision. The Tribunal’s written statement of reasons was not sent at that time.
ii)Also at 1:00pm, the electronic communication was received by the Department and logged into its computer system being the ‘Integrated Client Services Environment’ (“the ICSE”).
iii)At 1:01pm, the Tribunal received an electronic communication from the Department, notifying it that the ICSE had successfully matched the Tribunal’s communication with the applicant’s profile in the ICSE.
iv)At 1:38pm, the applicant sent a facsimile to the Tribunal apologising for not attending the hearing on 17 September 2012. The applicant stated that he had not checked his letter box until 19 September 2012 and that he therefore did not get the hearing invitation until that date. The letter went on to ask the Tribunal to reconsider his “condition” and give him an opportunity to attend another hearing.
v)Between 4:00pm and 5:00pm, The Tribunal dispatched a letter to the applicant and the Secretary of the Department (“the Secretary”) notifying them of the Tribunal’s decision to affirm the decision of the Delegate and enclosing a copy of the Tribunal’s written statement of reasons dated 17 September 2012 in accordance with s.430A of the Act.
On 25 September 2012, the Tribunal responded to the applicant’s facsimile request made at 1:38pm on 19 September 2012, informing him that his submission had been forwarded to the presiding member and that his request was “carefully considered”. The letter stated that the Tribunal Member had decided not to re-open the applicant’s case. The letter also advised that the Tribunal had made its decision on 17 September 2012, and that once it had done so, it became functus officio and had no power to take any further action on the review. The text of the letter was as follows:
“The Tribunal received your submission, which was received by the Tribunal on 19 September 2012.
The submission was forwarded to the Presiding Member and your request was carefully considered. However, the Presiding Member has decided not to re-open this case.
The Tribunal made its decision in this case on 17 September 2012. Once the Tribunal has made a decision under the Migration Act 1958, it becomes functus officio and has no power to take any further action on the review.
The Tribunal is not in a position to assist you any further on this issue.”
The proceeding before this Court
By consent, a Further Amended Application was filed in Court at the hearing of this matter on 28 July 2016 seeking an extension of time and identifying the following the grounds of review:
“Grounds of application
1. The second respondent erred in finding that it functus officio prior to the dispatch of its decision. The Tribunal retained the legal authority to take action to allow or enable the applicant to appear before it. The Tribunal misconstrued its own jurisdiction and, as a result it did not consider the applicant’s request for a further hearing. It thereby constructively failed to exercise the jurisdiction of which it was properly seized.
Particulars
(i) The electronic communication concerning the decision of the second respondent occurred at around 1pm on 19 September 2012.
(ii) A fax was received by the second respondent at around 1.40pm on 19 September 2012, stating, among other things, that the applicant requested an opportunity to attend a hearing before the second respondent.
(iii) The decision of the second respondent was not dispatched until 4.00pm (at the earliest) on 19 September 2012.
(iv) Between the time that the fax was received and the dispatch of the second respondent's decision, the second respondent retained the legal authority to take action to allow or enable the applicant to appear before it.
2. The second respondent erred in the exercise of its discretion, in that its exercise was unreasonable, in deciding to make a decision on the review without taking further action to allow or enable the applicant to appear before it.
Particulars
(i) At the time that the second respondent received the fax proceeded to make its decision on the review, the second respondent was aware that the applicant wanted to appear before it to give evidence and present arguments because of the following:
(A) the responses to hearing invitation;
(B) the fact that the applicant appeared at the first scheduled hearing on 14 August 2012, which hearing was abandoned because of inadequacies with the standard of interpreting;
(C) the fact that the applicant attended the second respondent, albeit 45 minutes late, for the second scheduled hearing on 6 September 2012.
(ii) The second respondent’s decision to make a decision on the review without taking further action to allow or enable the applicant to appear before it was, in all the circumstances of the case, unreasonable.”
Ground 1
Ground 1 essentially asserts that the Tribunal erred in finding that it was functus officio prior to the dispatch of its written statement of reasons to the applicant and the Secretary in accordance with s.430A of the Act, which relevantly occurred between 4:00pm to 5:00pm on 19 September 2012.
Sections 430 and 430A of the Act at the relevant time were as follows:
“430 Refugee Review Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
(2) A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.
(3) Where the Tribunal has prepared the written statement, the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
430A Notifying parties of Tribunal’s decision (decision not given orally)
(1) The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 430(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(2) A copy of that statement must also be given to the Secretary:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441B.
(3) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.”
The applicant contended that between the time that the applicant’s facsimile was received by the Tribunal at around 1:38pm on 19 September 2012, and the dispatch of the Tribunal’s written statement between 4:00pm and 5:00pm on 19 September 2012, the Tribunal retained the legal authority to take action to allow or enable the applicant to appear before it.
Counsel for the applicant, Mr Hamish Bevan, submitted that when the Tribunal received the applicant’s facsimile, its core function of review had not been completed because the written statement prepared in accordance with s.430(1) of the Act had not yet been dispatched in accordance with s.430A of the Act.
Counsel for the applicant submitted that the Tribunal misconstrued its own jurisdiction by concluding that it was functus officio at the time the applicant’s facsimile was received. Counsel submitted that, as a result, the Tribunal did not consider the applicant’s request for a further hearing, resulting in a constructive failure by it to exercise the jurisdiction of which it was properly seized.
Counsel for the first respondent, Mr Bora Kaplan, contended that, at the time the Tribunal received the facsimile from the applicant, it was functus officio with respect to its decision making power under s.415(2) of the Act and therefore had no power to consider the applicant’s request.
Counsel for the first respondent contended that the Tribunal became functus officio either at the time it prepared and dated its written statement under s.430(1) of the Act on 17 September 2012; or, at the time it notified somebody outside the Tribunal Registry of the outcome of the review; namely, at 1:00pm on 19 September 2012 when it sent an electronic communication to the Department.
Counsel for the first respondent referred to the Tribunal’s core function that it must review an ‘RRT-reviewable’ decision as required under s.414 of the Act. Pursuant to s.415 of the Act, the Tribunal may then affirm or vary the decision under review, remit the matter to the Department for reconsideration, or set aside the decision and substitute a new decision.
Counsel for the first respondent submitted that, the Tribunal having validly exercised its decision making power under s.414 (that is, having made a decision that is not affected by jurisdictional error) the Tribunal cannot re-exercise its decision making power and that power will have been spent, making it functus officio at that point. Once a decision has been made on the review under s.415 of the Act, the Tribunal must prepare a written statement in accordance with s.430(1) of the Act and notify each of the applicant and the Secretary under ss.430A(1) and (2) of the Act by giving them a copy of the written statement.
Counsel for the first respondent submitted that if the Tribunal makes a written decision on review, then by reason of s.430(2) of the Act, it will be taken to have made its decision once it has prepared and dated its written statement under s.430(1) of the Act. Counsel submitted that ss.430(1) and 430A(1) of the Act presupposed a decision already having been made.
Counsel for the first respondent submitted that the terms of ss.430 and 430A of the Act make clear that the Tribunal is taken to have exercised its decision making power and made its decision on the review prior to the Tribunal dispatching its written statement of reasons to the applicant and the Secretary. Counsel submitted that, in the case before this Court, the Tribunal had no power to amend, revoke or recall its decision at the time it received the applicant’s facsimile at about 1:38pm on 19 September 2012, because it was functus officio at 1:00pm.
Both parties referred the Court to the Full Court of the Federal Court of Australia’s decision in Minister for Immigration & Citizenship v SZQOY (2012) 206 FCR 25 (“SZQOY”) and Minister for Immigration & Citizenship v SZRNY (2013) 214 FCR 374 (“SZRNY”), which relied on SZQOY. Counsel for the first respondent conceded that this Court is bound by SZQOY.
In SZQOY, the Full Court of the Federal Court of Australia held that it is not until the decision of the Refugee Review Tribunal (“the RRT”) is beyond recall that it will be functus officio.
The Court in SZQOY was considering whether the communication of a decision to or within the RRT Registry, in contrast to external communication of the decision, was beyond recall. The Court found that a decision communicated outside the RRT Registry will be beyond recall. The effect of the decision in SZQOY is that a decision is beyond recall once it has been sent to the applicant and the Secretary as required by s.430(2) of the Act.
SZQOY was considering a situation where the RRT had sent its decision to the RRT Registry to be dispatched to the applicant and the Secretary. However, the statement of reasons had not in fact been sent outside the RRT Registry prior to the RRT receiving a further written submission from the applicant’s representative.
Counsel for the first respondent submitted that it was not necessary for the Court in SZQOY to determine whether the RRT was functus officio in relation to its decision making power upon external communication of the RRT’s decision.
Counsel for the first respondent contended that such a determination is necessary in the case before this Court because at 1:00pm the Tribunal sent an electronic communication to the Department of the outcome of its decision. Counsel submitted that this was an external communication of the Tribunal’s decision, despite the fact that the communication did not include a copy of the statement of reasons dated 17 September 2012. Counsel for the first respondent submitted that the fact that the reasons for the Tribunal’s decision, as distinct from the decision itself, had not been dispatched prior to 1:38pm on 19 September 2012, was of no relevant consequence.
When the Tribunal’s power is spent has now been put beyond doubt by the insertion of s.430(2A) of the Act. The Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) responsible for the s.430(2A) amendment stated that the amendment addressed the Judgments in SZQOY and SZRNY to “clarify and provide certainty as to when a decision on review (other than an oral decision), or a visa refusal, cancellation or revocation decision by the Minister or his delegate, is taken to be made on the day and at the time when a record of it is made”. The Explanatory Memorandum provides that the Bill puts beyond doubt the time at which a Migration Review Tribunal or a Refugee Review Tribunal is taken to be functus officio.
Counsel for the first respondent referred to the following reasons in his written submissions as to why the Tribunal was functus officio with respect to its decision making power when its decision was notified to the Department electronically at 1:00pm on 19 September 2012:
“44. First, the Tribunal’s decision had been “sent out” of the Tribunal registry at that time (SZQOY at 33 [40] per Logan J).
45. Secondly, the matter was no longer “entirely intramural” (SZQOY at 33 [40] per Logan J).
46. Thirdly, the Tribunal had “reach[ed] a conclusion on a matter as a result of a mental process having been engaged in and translated that conclusion into a decision by an overt act”, that act being the “communication of [the decision] to another” (Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 (“Semunigus”) at [20] per Finn J).
47. Fourthly, the decision was effectively put into the public domain and it would have been embarrassing for the Tribunal had the pronouncement of its decision not been effectuated (Semunigus at 547 [105] per Madgwick J).
48. Fifthly, what occurred at 1:00 pm was not a process that was “entirely internal to the [Tribunal]’s own establishment” (Semunigus at 547 [105] per Madgwick J).
49. Sixthly, the decision had been “manifested” by “some overt act” (SZQOY at 32 [34] per Logan J), being “communication of [the Tribunal’s decision] to [the Department]” or even “written notation of a conclusion on a departmental file” (Semunigus at [20] per Finn J).
50. Seventhly, the decision had been “externally notified” (SZQOY at 34 [46] per Logan J).”
To the extent that the first respondent contends as its primary position that the Tribunal was functus officio on 17 September 2012 when it dated its statement of reasons, this Court is bound by SZQOY. In SZQOY, Logan J at [33] – [34] found that s.430(2) of the Act (which, at the relevant time, stated that a decision is taken to have been made on the date of the written decision) had no higher purpose than giving precision to the date when the RRT availed itself of the opportunity to notify the parties pursuant to s.430A of the Act. Buchanan and Barker JJ did not suggest to the contrary.
In the circumstances, the first respondent accepted that, on the authority of Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 (“Semunigus”) and SZQOY, the Tribunal is functus officio depending on whether a decision is beyond recall. As stated above, counsel contended that that point was reached at 1:00pm on 19 September 2012 upon communication of the outcome of the Tribunal’s review to the Department.
The question that falls for this Court is at what point the Tribunal’s decision is beyond recall (see SZQOY).
In SZQOY, the RRT had sent its written statement of reasons to the RRT Registry to be dispatched to the applicant and the Secretary. However, as stated above, the statement of reasons had not been sent outside the Registry prior to the RRT receiving a further submission from the applicant’s representative. The Full Court held that the RRT still had jurisdiction to consider that submission and that it was not, at that time, functus officio.
I accept the submission of counsel for the first respondent that SZQOY was not determining whether the RRT was functus officio upon external communication of the RRT’s decision. However, the external communication to the applicant and the Secretary pursuant to s.430A of the Act was held to place the RRT’s decision beyond recall.
Buchanan J in SZQOY at [23], with whom Logan and Barker JJ agreed, also rejected the proposition that the RRT’s decision in that case was made at the time the decision was communicated internally by a Tribunal Member to the Registry of the RRT. Buchanan J found at [24] that the period in which the RRT retained its legal authority to recall its decision did not end on, or at the time, of an internal communication to its own Registry.
In particular, Buchanan J at [25] – [28] stated as follows:
“25. The present case is not the first time that an issue of this kind has arisen for consideration, although there have been some alterations to the statutory framework in the intervening period. In Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 Finn J considered the date upon which the RRT was functus officio, having regard to the statutory arrangements then in place. His Honour said (at [19]):
19. For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion – as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.
26. On appeal (Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533) Madgwick J said, in a passage with which I agree, (at [102]-[103]):
102. As a matter of undoubted fact, the conclusion to which the RRT member had arrived in his own mind had not been communicated to anyone outside the RRT’s own staff. The taking of administrative steps, as part of an orderly general system of case management, to have support staff communicate the decision (and the reasons for it) to the parties could therefore plainly have been halted or countermanded by the RRT member. That must be the case, as a matter of administrative necessity: a RRT member might have had second thoughts about the proper factual conclusions in a case; or a new judicial decision might change the member’s understanding of the relevant law. Mere case management practices, even if publicly decreed, cannot stand in the way of justice being done: Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146.
103. In a case of the kinds dealt with by the RRT, a decision is no decision, in my opinion, until either it has been communicated to the applicant or irrevocable steps have been taken to have that done. I speak of communication to the applicant because, before the RRT, the applicant is the only party. There is no need to regard a decision as irrevocable before it must be considered to have passed into the public domain.
27. Spender J was less definite, saying (at [12]):
12. There is little evidence touching the question whether the decision by the Member of the RRT, in this particular case, was “beyond recall”. I think it likely that, had the Member wanted to recall his signed decision, because, for example, he had changed his mind or had realised that he had made a mistake, he would have been able to retrieve the decision at any time prior to a copy of it having been sent to either the Minister or the applicant as then required by s 430(2) of the Migration Act 1958 (Cth) (“the Act”).”
(Emphasis added).
Buchanan J found that the findings of Finn J, Madgwick J and Spender J stated the correct legal position and concluded at [29] as follows:
“A decision maker must be precluded from revisiting the decision at his or her option before it is to be regarded as final in the relevant sense. In the present case there was, in my view, no support in the evidence or in any of the statutory provisions relied upon by the appellant to suggest that it was beyond the power of the Member of the RRT to recall the decision which had been sent to the Registry through the RRT’s electronic case management system”
Logan J stated in SZQOY at [40]:
“40. The intellectual process in undertaking the core function of review is not an end in itself. The decision and reasons which are the result of that intellectual process must be made known to the persons interested. Those persons are the applicant for the review and the Secretary. It is only when the decision of the RRT as constituted by the particular member has either been pronounced orally or, if given in writing, sent to the applicant and to the Secretary in accordance with the notification obligation that the core function of review is complete. Before then, the member is entitled to have second (or more) thoughts perhaps on the basis of further reflection on all of the material hitherto to hand, perhaps stimulated by further material. At that stage, the matter is entirely intramural. Depending on the nature and source of that further material there may be procedural fairness obligations which fall upon the member before a final decision is made. That member is entitled to entrust to a registry officer the tasks of recording the decision and of notifying the applicant and the Secretary of that decision but the responsibility for so doing remains that of the member who has conducted the review. Until the decision has been sent out, that member is also entitled to countermand a direction to the registry to record and send out what has proved, upon the member’s reflection, to be an earlier version of that member’s decision.”
(Emphasis added).
Logan J at [41] drew an analogy between the intellectual process of administrative decision making and its culmination by “manifestation to the interested party”. Logan J referred to the analysis in Batagol v Federal Commissioner of Taxation (1963) 109 CLR 243 (“Batagol”), where Kitto J (Menzies J agreeing) found that an assessment in the sense of a mere calculation as part of the process of the assessment laid down in the Income Tax Assessment Act 1936 (Cth) produced no legal effect and that the process of assessment was not complete until notice of the assessment had been given to the taxpayer. Kitto J stated at [5] that “nothing done in the Commissioner's office can amount to more than steps which will form part of an assessment if, but only if, they lead to and are followed by the service of a notice of assessment”.
Logan J found that the analysis of the provisions considered in Batagol was similar to the provisions of the Act relating to the RRT’s core function of review. Logan J found that it therefore yielded a similar type of conclusion (see SZQOY at [41]). In SZQOY at [41] Logan J stated that:
41. …Nothing done within the RRT’s office can amount to more than steps which will form part of the review of the decision if, but only if, they lead to and are followed by the oral pronouncing or other notification of the decision of the particular member constituting the RRT for the purpose of that review.”
(Emphasis added).
Logan J referred to the previous legislative procedure which required the RRT’s decision to be “handed down”. That process involved the applicant and the Secretary being invited to be present at a time when the Member constituting the RRT announced the decision orally. A tribunal may still take that course. Logan J found that it is in that context that s.430(2) of the Act does no more than give precision to what is to be the date of the decision when the RRT avails itself of that alternative.
I accept that, based on SZQOY, it was necessary for the Tribunal to take some “overt act” that placed its decision beyond the province and control of the Tribunal such that its decision was beyond recall.
Whilst the electronic communication was to the Department at 1:00pm and not intramural the RRT, there is no evidence to explain what was the purpose of that step being taken. Nor was it suggested that it was pursuant to any legislative obligation. The communication and response appear to have been electronically generated. There is no evidence that the ICSE system was available to the applicant, or indeed, any evidence as to who were the persons that could access that information. Why would one assume that what appears to be an automatically generated electronic entry, on what may be internal Department information, was available to any person whose access to that information would place the Tribunal’s decision beyond recall. There was no evidence of the purpose of that communication.
In the course of submissions, I asked counsel for the first respondent what happens to a statement of reasons when a Tribunal Member settles the reasons and dates them. Counsel responded that his understanding of the mechanics of the process was very poor and was not the subject of evidence. In an endeavour to answer my question, counsel responded that his poor understanding of the mechanics of the workings of the Tribunal is that the decision record and statement of reasons is provided to the Tribunal Registry and “certain things then happen’’. Counsel then said no more than that it seemed that an electronic version of the decision is sent to the Department.
In the absence of evidence relating to a) the Tribunal processes and the relationship with the Department in relation to automatic electronic communications between them; b) the purpose for such communications; and, c) the persons with access, I am not satisfied that the Tribunal’s decision was beyond recall at 1:00pm on 19 September 2012. The Tribunal’s written statement was still within its province and control and may not have been the subject of any external communication. It was only the outcome of the decision that was communicated to the Department. As stated above, there is no evidence as to what that means and who may have access to the ICSE system, which the parties agree is where the outcome of the decision had been recorded.
In accordance with SZQOY, in the absence of any evidence to the contrary, there is no reason why it should be concluded that at 1:00pm on 19 September 2012, the Tribunal was not able to amend its written statement in any way, including changing the outcome.
At the conclusion of the hearing, I reserved my judgment. However, the absence of any evidence by the first respondent as to the matter referred to above caused me sufficient concern that I relisted the matter before me at a time convenient to both counsel and again explained my concerns to them. Counsel for the first respondent, Mr Kaplan, sought leave to file evidence and submissions and counsel for the applicant, Mr Bevan, did not oppose that course. I then made directions that the parties attempt to agree the relevant facts and for the applicant to file a Further Agreed Statement of Facts. Both parties were directed to file further submissions. The Further Agreed Statement of Facts was filed on 6 December 2016 and I make findings accordingly in the following terms:
“1. Sometime after 4:19 pm on 7 September 2012, the Refugee Review Tribunal (Tribunal) sent to the applicant’s address a letter dated the same inviting him to appear before the Tribunal on 17 September 2012 (hearing invitation).
2. At 7:57 am on 10 September 2012, the hearing invitation was delivered to (that is, received at) the applicant’s address and was awaiting collection.
3. On 17 September 2012, the Tribunal:
(a) made a decision to affirm a decision of the delegate of the then Minister for Immigration and Citizenship (Minister) dated 24 April 2012 to refuse to grant to the applicant a Protection (Class XA) visa (delegate’s decision); and
(b) prepared and dated its Statement of Decision and Reasons (decision record) as required by section 430 of the Migration Act 1958 (Cth) (Act) in the form which it stood as at 17 September 2012.
4. Sometime between 9:44 am and 9:57 am on 19 September 2012, the applicant collected the hearing invitation.
5. At 1:00 pm on 19 September 2012, the Tribunal sent to the then Department of Immigration and Citizenship (Department, from its online case management system, CaseMate, using an electronic data exchange, a communication comprising notification of the following:
(a) a decision had been made on the applicant’s application for review of the delegate’s decision; and
(b) the Tribunal had decided to affirm the delegate’s decision.
6. The electronic data exchange is a customised system which transfers from CaseMate to the Department’s computer system, the Integrated Client Services Environment (ICSE), electronically.
7. For each application for review before the Tribunal, CaseMate records various steps taken by the Tribunal. Those steps include, but are not limited to , the following:
(a) “Decision”: This step confirms that the member constituting the Tribunal for the purpose of the particular review has made a decision on the review. Before the next step can be taken, the member must enter in CaseMate details of the date of the decision and the decision itself. In the present case, this step was completed by the member constituting
(b) “Case_Finalisation”: Once the “Decision” step is completed, staff within the Tribunal registry are required to attend to matters including obtaining a copy of the decision record; preparing a letter notifying the applicant and the Secretary of the Department (Secretary) of the Tribunal's decision; arranging for despatch of that letter and the decision record to the applicant and the Secretary; arranging for original documents to be returned to the applicant (if necessary); processing a fee refund; and preparing a hard−copy file to be sent to the Department. In the present case, this step was completed by a Tribunal officer at 12:57 pm on 19 September 2012.
(c) “Decision & Finalisation of Review”: Once the “Case_Finalisation” step is completed, the communication referred to in paragraph 5 above is automatically sent to the Department. In the present case, this step was completed at 1:00 pm on 19 September 2012.
(d) “Finalisation Notification Processed – See Part Screen for Matching Outcome”: This step is automatically generated once the Tribunal has received an electronic communication sent from the Department confirming that the Department has matched the communication referred to in paragraph 5 above with the applicant's profile in its records. As described below, this step was completed at 1:01 p m on 19 September 2012.
8. In addition to recording in CaseMate various steps in relation to an application for review, the Tribunal is required to undertake other steps, including sending a copy of a decision record to the review applicant and the Secretary.
9. The purpose of the communication referred to in paragraph 5 was for the Tribunal to notify the Department of the outcome of the application for review, that is, the fact that a decision has been made on the review and the decision itself (for example, that the delegate's decision has been affirmed). This communication did not contain a copy of the decision record.
10. Once a communication of the kind described in paragraph 5 above has been sent to the Department over the electronic data exchange, it cannot be recalled, deleted or otherwise modified by the Tribunal.
11. The Tribunal can send a further communication of the kind described in paragraph 5 above if, for example, it has made an error in its earlier communication or if the Tribunal has decided to re−open an application for review. Upon despatch of that communication to the Department, a separate entry will be made in CaseMate. All previous entries in CaseMate, however, will remain and cannot be deleted.
12. Also at 1:00 pm on 19 September 2012, the electronic communication referred to in paragraph 5 was received by the Department and logged in ICSE. At 1:00 pm, ICSE validated the communication by matching unique identifiers within it, including the Tribunal Case ID “1207274” and the applicant’s Client ID “80856232644”, with the existing records in ICSE.
13. Once the communication from the Tribunal was validated, ICSE recorded the communication as an event (a date record in ICSE) titled “Review Affirmed — Refugee”. That event also took place at 1:00 pm. This communication was accessible by 7,307 ICSE users within the Department as at 1:00 pm on 19 September 2012.
14. A record in ICSE cannot be recalled, deleted or otherwise modified, even if a further communication of the kind described in paragraph 11 above is sent by the Tribunal to the Department. The sending of such a communication will only result in the making of a new entry in ICSE.
15. Also at 1:00 pm on 19 September 2012, having received the communication from the Tribunal, ICSE caused to be recorded the date upon which the applicant's Bridging (Class WA) (subclass 010) visa would cease in accordance with cl. 010.511(b)(iii)(A) of Schedule 2 to the Migration Regulations 1994 (Cth).
16. At 1:01 pm on 19 September 2012, the Tribunal received an electronic communication from the Department to notify it that, upon receipt of the electronic communication referred to in paragraph 5 above, ICSE successfully matched that communication with the applicant's profile in ICSE.
17. The purpose of the communication referred to in paragraph 16 was to inform the Tribunal that the outcome of the review had been received and recorded by the Department. As described in paragraph 7(d) above, when this communication is received and processed by CaseMate, an event (a date record in the CaseMate database) is created with the text “Finalisation Notification Processed — See Party Screen for Matching Outcome”.
18. The applicant did not, and does not, have access to:
(a) CaseMate;
(b) ICSE; or
(c) Communications between the Tribunal and the Department sent via CaseMate and/or ICSE.
19. At 1:38 pm on 19 September 2012, the applicant sent a facsimile to the Tribunal as set out at pages 117−118 of the Relevant Documents filed in these proceedings.
20. Between about 4:00 pm and 5:00 pm on 19 September 2012, the Tribunal despatched copies of its decision record to the applicant and the Secretary in accordance with section 430A of the Act in the form in which it stood as at 17 September 2012.
21. The decision record was despatched to:
(a) the applicant pursuant to section 441A(4) of the Act; and
(b) the Secretary pursuant to section 441B(3) of the Act.
22. The only notification of the Tribunal's decision to which the applicant had access was the decision record that was despatched to him as described in paragraphs 20 to 21 above.”
In further written submissions, counsel for the applicant submitted that the electronic communication did not have any particular legal status insofar as the Tribunal’s continued jurisdiction is concerned particularly where the applicant does not have access to that electronic communication or the technology behind it. Mr Bevan submitted that at 1:00pm the Tribunal had not sent the decision record either to the applicant or the Secretary. Further, the electronic communication did not contain a copy of the decision record. The decision record was not dispatched until between 4:00pm or 5:00pm and the applicant did not have access to the electronic communication between the Tribunal and the Department. Mr Bevan submitted that in those circumstances, the Tribunal was wrong to hold that it was functus officio at 1:00pm because there had been no external communication of the decision to both the applicant and the Secretary and the decision was not beyond recall at that time in the sense discussed by the Full Court in SZQOY.
Similarly, in further written submissions, counsel for the first respondent contended that the Tribunal was functus officio with respect to its decision making power with respect to s.415 of the Act when it communicated its decision outside of the registry of the Tribunal, that being to the Department at 1:00pm on 19 September 2012. Counsel for the applicant submitted that, therefore, the Tribunal’s decision was “beyond recall” at 1:00pm as that expression is understood in cases such as Semunigus and SZQOY based on the following evidence:
“(a) The communication informed the Department of the Tribunal’s decision on the review.
(b) The communication, once sent, could not be recalled, deleted or otherwise modified by the Tribunal.
(c) The communication was received by the Department at 1:00 pm and was accessible by 7,307 departmental officers from that time.
(d) The Department acted upon the communication at 1:00 pm in that its computer system recorded the date on which the applicant’s bridging visa would cease in accordance with the Migration Regulations 1994 (Cth) (Regulations).”
I accept that at 1:00pm the decision had been sent out and the matter was no longer entirely intramural and that the Tribunal’s conclusion had been translated into a decision by an overt act. That overt act was the communication of the decision to the Department which had the effect of the decision being in the public domain to at least 7,307 people, and the decision had been acted upon by the Department in cancelling the applicant’s bridging visa.
Further, I accept that the electronic communication sent at 1:00pm, whilst not a step required under the Act, had no legal significance as once the communication had been sent, the Tribunal’s decision (as opposed to its statement of reasons) had been sent outside of the tribunal registry. Moreover, I accept the first respondent’s submission that the concept of a decision being “beyond recall” is not one that can be sourced in any provision in the Act.
Further, I accept the first respondent’s submission that to find the Tribunal became functus officio with respect to its decision making power only after the Tribunal’s decision and statement of reasons had been dispatched to the applicant and the Secretary, ignores and is inconsistent with s.430A(3) of the Act. That section provides that “a failure to comply with this section in relation to a decision on review does not affect the validity of the decision.” That section has the effect that, as long as it is not otherwise affected by jurisdictional error, a decision of the Tribunal will be valid and unable to be recalled or altered, even if the statement of reasons has not yet been dispatched to the applicant and Secretary.
Accordingly, I accept the first respondent’s submissions that the validity of the Tribunal’s decision did not depend upon despatch of the decision record to the applicant the Secretary.
In accordance with the authorities with which I am bound, I find that the electronic communication to the Department at 1:00pm was an overt act that placed the Tribunal’s decision beyond recall.
Whilst I am bound by the principles stated in SZQOY, as referred to above, the first respondent formally submitted that SZQOY was wrong. For that reason, I refer to the first respondent’s relevant submissions as follows:
“34. If the Tribunal has exercised its decision-making power under s 415 validly (that is, it has made a decision and that decision is not affected by jurisdictional error), it cannot re-exercise that power; it will have been spent.[12] In this regard, s 33 of the Acts Interpretation Act 1901 (Cth) does not apply in respect of s 415(2), as the Act evinces the necessary contrary intention.[13] If the Tribunal cannot re-exercise its decision-making power once it has validly exercised it, then it is functus officio in respect of that power at that point.
35. Once a decision has been made on a review under s 415, the Tribunal must prepare a written statement in accordance with s 430(1) and then send a copy to each of the review applicant and the Secretary under ss 430A(1) and (2). As at 17 September 2012, those sections relevantly provided:
430 Refugee Review Tribunal to record its decisions etc
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
[12] Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 355 [30] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 311 per Goldberg J; Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243 at 247 [14] per Hely J; Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18 at 28 [35] per Merkel J; X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319 at 326-327 [23] per Gray J (with whose reasons Moore J generally agreed); SZBWJ v Minister for Immigration and Citizenship (2008) 171 FCR 299 at 303 [10], 305 [19] per Moore J.
[13] SZBWJ v Minister for Immigration and Citizenship (2008) 171 FCR 299 at 303 [10], 304-305 [16].
(2) A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.
…
430A Notifying parties of Tribunal’s decision (decision not given orally)
(1) The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 430(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(2) A copy of that statement must also be given to the Secretary:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441B.
(3) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.
36. Sections 441A and 441B set out the methods by which documents may be given to review applicants and the Secretary, respectively. At the relevant time, s 441A relevantly provided that a document could be given to a review applicant by dispatching it by prepaid post (subs (4)) and s 441B relevantly provided that a document could be given to the Secretary by dispatching it “by post or by other means” (subs (3)(b)). In the present case, the Tribunal’s decision record was despatched to the applicant pursuant to s 441A(4) and to the Secretary pursuant to s 441B(3).[14]
37. If the Tribunal makes a written decision on a review, then, by reason of s 430(2), it will be taken to have made its decision once it has prepared and dated its statement under s 430(1). So much is clear not only from the text of s 430(2), but also from the opening words of ss 430(1) and 430A(1), which presuppose a decision already having been made.[15] While the Tribunal may actually reach a decision prior to preparing and dating its s 430(1) statement, for the purposes of the Act the Tribunal will be taken to have made its decision when it has prepared and dated that statement. What is plain from the terms of these provisions is that the Tribunal will have exercised its decision-making power and made its decision on the review prior to dispatching its decision to the review applicant and the Secretary in accordance with ss 430A(1) and (2).
38. Thus, the Tribunal cannot re-exercise its decision-making power under s 415 if it has already exercised that power validly, that is, made a decision that is not affected by jurisdictional error. In the circumstances of the present case, that point was reached at the time the Tribunal prepared its s 430(1) statement on 17 September 2012. Consequently, the Tribunal had no power to amend, revoke or recall its decision at the time it received the applicant’s letter at about 1:38 pm on 19 September 2012. Therefore, the Tribunal was correct to conclude that it was beyond its power “to take any further action on the review”: CB 122.
39. Unconstrained by authority, the Minister would have commended this analysis to the Court. While it is sound, this analysis is not consistent with the judgment of Buchanan, Logan and Barker JJ in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25. The Minister formally submits that that decision is wrong, but accepts that it binds this Court. That said, what their Honours held in SZQOY is not consistent with the cases referred to in footnote 12 of these submissions and the judgment of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405.”
[14] Statement of Agreed Facts at [10].
[15] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at 417 [70] per McHugh J.
In the circumstances, the prospects of success in Ground 1 are not sufficiently arguable that it is necessary in the interests of justice to extend time to the applicant to seek judicial review of the Tribunal’s decision made on 19 September 2012 not to re-open the applicant’s case.
Ground 2
The applicant also challenges the Tribunal’s exercise of its discretion on 17 September 2012 to proceed to make its decision on the review without taking any further action to allow or enable the applicant to appear before it.
The applicant referred to the principles drawn from the High Court of Australia’s decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and the Full Court of the Federal Court of Australia’s decision in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437. Those principles were summarised helpfully by Wigney J in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at [41] as follows:
“41. The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].”
The applicant submitted that, as at September 2012, the Tribunal was aware that the applicant wished to appear before it to give evidence and present arguments because, although late, the applicant had turned up on the days of the hearing. The first hearing was adjourned by reason of the inadequacy of the standard of interpreting and the second hearing was adjourned because the interpreter had been excused by the time the applicant arrived 45 minutes after the scheduled commencement time.
Further, the Tribunal acknowledged that part of its reasons for affirming the decision under review was because it was unable to obtain further detail or evidence from the applicant to support his claims.
Clearly, any discretion must be exercised reasonably. The discretion exercised by the Tribunal pursuant to s.426A of the Act is as follows:
“426A Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) 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;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.”
Section 426A of the Act is a provision that expressly authorises the Tribunal to make a decision without taking any further action to allow or enable a review applicant to appear before it, if it is satisfied that the Tribunal had complied with s.425 and s.425A of the Act. It clearly does not impose an obligation on the Tribunal to “to discover if there might be some other avenue of communicating with [the applicant]” where an applicant fails to appear (see Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439 at [35] and [39] per Spender, French and Cowdroy JJ).
Additionally, I accept counsel for the first respondent’s submission that a rescheduled hearing does not involve a fresh invitation for the purposes of s.425(1) of the Act, and rather, is a variation of the initial invitation (see Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 at [79] – [82] per Spender, French and Cowdroy JJ; SZHDC v Minister for Immigration and Multicultural Affairs [2006] FCA 600 at [12] per Stone J).
Further, the 14 day period for notice to an applicant to come to a hearing as required by reg.4.35D(b) of the Migration Regulations 1994 (Cth) (“the Regulations”) does not apply to an invitation to a rescheduled hearing (see Minister for Immigration and Multicultural Affairs v SZFML (2006) 154 FCR 572 at [79] – [92] per Spender, French and Cowdroy JJ; Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51 at [27] – [35] per Flick J) (“Ogawa”). However, the period of notice to be given for a rescheduled hearing must be reasonable in all of the circumstances. In Ogawa, Flick J set out at [37] a non-exhaustive list of matters for consideration in such circumstances. I accept, as submitted by counsel for the first respondent in his written submissions, that they include:
a) the period prescribed for the giving of notice in respect to any initial proposed hearing date;
b) the complexity of any legal and factual issues to be canvassed at the rescheduled hearing;
c) any opportunity previously extended to an applicant to assemble factual materials in support of any claims made and any opportunity to marshal such legal arguments in support of those claims;
d) any need to obtain further materials or evidence that may not have been available in time for the initial scheduled hearing;
e) whether the opportunity previously extended to an applicant to prepare any claim to be advanced was prejudiced or rendered nugatory for reasons peculiar to an applicant or by reason of changed circumstances;
f) whether any request was made for a rescheduled hearing to be further postponed or adjourned and, if so, the basis upon which the applicant sought to support that request; and
g) any assessment by the Tribunal member as to the adequacy of the period of notice given.
In the case before this Court, the third hearing invitation was delivered to the applicant’s address on 10 September 2012, being 7 days prior to the date of the scheduled hearing. The applicant gave evidence that he did not look in his letter box until 19 September 2012, some 2 days after the date of the hearing. However, in the circumstances of this case, I am satisfied that a notice period of 7 days was reasonable.
I accept the first respondent’s submission that the Tribunal’s decision to exercise its discretion under s.426A(1) of the Act on 17 September 2012 was reasonable in light of the fact that the applicant never provided further documentary material, despite being invited to do so on at least 3 occasions. Further, the applicant had twice arrived late for the hearings and was given 7 days’ notice of the third hearing.
I accept the first respondent’s submission that, contrary to the applicant’s submission, this was not a case in which it was reasonable for the Tribunal to be aware that the applicant had wanted to appear before it to give evidence and present arguments, or that the applicant had a clear desire and intention to attend the hearings on two previous occasions. Moreover, the applicant had not attended the interview before the Delegate.
In the circumstances, the Tribunal’s exercise of its discretion under s.426A of the Act to decide to make a decision on the review without taking any further action to allow or enable the applicant to appear before it was reasonable in all the circumstances.
Accordingly, the prospects of success in Ground 2 are not sufficiently arguable that it is necessary in the interests of justice to extend time to the applicant to seek judicial review of the Tribunal’s decision made on 19 September 2012 not to re-open the applicant’s case.
Exercise of discretion – delay and utility
Further, the applicant’s explanation for a delay of some 792 days is not sufficient to outweigh the lack of utility in extending time to the applicant to rely on the presently pleaded Grounds.
In considering whether time should be extended to the applicant to have the opportunity to seek judicial review of the Tribunal’s decision made on 19 September 2012, I also have regard for the applicant’s explanation for the delay and the utility in granting relief.
In relation to the delay, the applicant read an affidavit affirmed by him on 4 May 2016. In that affidavit, the applicant deposed that at around the time of the Tribunal’s decision, he was working in a chicken factory in Tamworth. The applicant stated that after he received the Tribunal’s decision, a friend told him that he could apply to the Court and prepared some Court forms for him. The friend told the applicant that he had sent those forms to the Court.
The applicant said that about half way through 2013, he rang the Court and was told by the person he spoke to that there was no record of him on the Court’s system, and that he could apply again to the Court. The applicant said that he then did not know what to do. The applicant said that he spoke to another friend who referred him to a migration agent. The applicant said that he cannot remember the name of that friend or the migration agent. The applicant said that he could not afford the fees of the migration agent and that he was suspicious as to whether he was a genuine migration agent. Again, he relied on friends who told him that migration agents “are all the same”.
The applicant deposed that, in 2013 and 2014, he continued to work in Tamworth. The applicant stated that, after paying for rent, food and work tools, he did not have any money left to spend on lawyers.
The applicant deposed that in late 2014, he spoke to another friend who introduced him to an agent who prepared the Court documents for him for free. The applicant said that he regretted listening to friends in the past, in particular, the friend who told him that migration agents “are all the same”. The applicant said that he now realised that he should have done more about the Tribunal’s decision and would like the opportunity to tell the Tribunal why he is afraid to return to China.
Counsel for the applicant submitted that the applicant is a man with scarce financial resources who, perhaps foolishly, relied on friends for advice and now regretted that mistake. Counsel for the applicant submitted that the applicant’s explanation is understandable and is sufficiently adequate when balanced with the Tribunal’s error and the lack of prejudice to the first respondent. Counsel for the applicant submitted that, in the circumstances, it is in the interests of the administration of justice that time be extended to the applicant.
Whilst it may possibly have been a sufficiently adequate explanation when balanced with any error and the lack of prejudice to the first respondent, I am not satisfied that the errors pleaded are sufficiently reasonably arguable to outweigh the significant delay of some 792 days and an explanation that is not satisfactory. The applicant had been able to lodge an application for a protection visa, and an application for review of the decision to refuse him that visa. The applicant had assistance in the preparation of his visa application. The applicant has demonstrated that he is a person with an ability to avail himself of assistance. It is the applicant’s responsibility to inform himself as to the rights he has. In the Tribunal’s letter to the applicant acknowledging receipt of his review application dated 29 May 2012, and the invitation to hearing dated 18 July 2012, the applicant was given the contact details of translating and interpreting services. In the circumstances, I do not accept the applicant’s explanation as sufficient to explain the overwhelmingly substantial delay of 792 days.
Accordingly, the applicant’s application to this Court to extend time to him to seek judicial review of the Tribunal’s decision dated 17 September 2012 should be refused.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 14 March 2017
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