Tong v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 334

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Tong v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 334  

File number(s):

MLG 1557 of 2022

Judgment of:

JUDGE MANSINI

Date of judgment:

4 May 2023

Catchwords:

MIGRATION – Application for an extension of time for judicial review of decision of the Administrative Appeals Tribunal – where Tribunal affirmed decision not to grant a Visitor (Subclass 600) visa in reliance on Applicant’s concession that he did not meet a mandatory requirement of such application – where application for judicial review was lodged 13 days after expiry of the statutory timeframe – where delay is short but explanation of technical difficulties not accepted as reasonable –  where substantive application is futile and lacks merit – extension of time ought not be granted – application refused.

Legislation:

Migration Act 1958 (Cth) ss. 476(2), 477(1), 477(2)

Migration Regulations 1994 (Cth) Sch 2 cl.600.223, Sch 3 3001

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr.2.05(3), 29.05(2)(c)

Cases cited:

AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193

BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483

SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86

Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28

Division:

Division 2 General Federal Law

Number of paragraphs:

64

Date of hearing:

27 April 2023

Place:

Melbourne

The Applicant:

Appearing in person

Counsel for the First Respondent:

Mr M Daly

Solicitor for the First Respondent:

Mills Oakley

ORDERS

MLG 1557 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	YUBIN TONG Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	JUDGE MANSINI
DATE OF ORDER:	4 May 2023

THE COURT ORDERS THAT:

1.Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

2.The Applicant pay the costs of the First Respondent fixed in the sum of $4,189.

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 MANSINI

IN SUMMARY

1. Before the Court is an application for an extension of the time in which to apply for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), under s.477(2) of the Migration Act 1958 (Cth) (Act).

2. The substantive application is for judicial review of the Tribunal’s decision to affirm a decision of a delegate of the First Respondent Minister not to grant the Applicant a Visitor (Class FA) Subclass 600 visa, pursuant to s.65 of the Act.

3. The application was filed 13 days outside the statutory timeframe. Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day period, the application is refused. The reasons for this decision follow.

   The relevant facts

4. The Applicant is a citizen of China.

5. On 22 March 2011, the Applicant arrived in Australia on a Student (Subclass 573) visa. Since 2015, the Applicant owned and operated a business in Australia.

6. On 15 March 2018, the Applicant’s Higher Education Sector (Subclass 573) visa ceased.

7. On 31 December 2019, the Applicant was granted a Bridging visa (Subclass 050) Bridging visa E.

8. On 27 October 2021, the Applicant applied for a Visitor (Class FA) Subclass 600 visa (Visitor visa), seeking to satisfy the primary criteria in the tourist stream of Subclass 600. On his application form, the Applicant indicated the reasons for requesting this further stay in Australia as “to grant a visitor visa and prepare to apply for business innovation visa and invest in Australia.”

9. On 3 November 2021, the Department of Home Affairs sent the Applicant a letter, inviting him to comment on Department records which indicated that his last substantive visa had ceased on 15 March 2018. The letter advised the Applicant that that there were no provisions to grant a Visitor visa to persons who applied more than 28 days after their last substantive visa had ceased. The Applicant did not respond to that letter.

10. On 23 November 2021, a delegate of the First Respondent Minister refused to grant the Visitor visa on the basis that the Applicant did not satisfy criterion 3001 of Schedule 3 to the Regulations and therefore could not satisfy cl.600.223 of Schedule 2 to the Regulations. The delegate found that the Applicant’s last substantive visa had ceased on 15 March 2018, he did not hold a substantive visa at time of the Visitor visa application, and that the application for a Visitor visa was lodged more than 28 days after the Applicant’s last substantive visa ceased. A copy of the delegate’s decision record was provided to the Applicant on the same date.

11. On 10 December 2021, the Applicant applied to the Tribunal for a review of the delegate’s decision. No further material was provided with the application form.

12. On 22 April 2022, the Tribunal invited the Applicant to attend a telephone hearing scheduled on 18 May 2022.

13. On 5 May 2022, the Applicant sent an email to the Tribunal which attached a response to the hearing invitation.

14. On 17 May 2022, the Applicant sent an email to the Tribunal which attached a personal statement (dated 15 May 2022) which included the following:

    I recognized that I did not hold any substitute visa when lodged the visitor visa application, however, I still believe I had compelling and compassionate reason to grant this visitor visa because during the period of October and November 2021, the Covid-19 pandemic was still existed and outbroke over the world, including Australia and China. That is, the risk of infection during the international travel from Australia to China still existed.

    Also, due to strict zero-Covid strategy, the flight between Australia and China was very limited and would be fused without any notice in advance, which caused the air ticket extremely expensive and impossible to obtain.

    Based on “zero-COVID” strategy of handling outbreaks with strict isolation and mass testing in China, travellers return to China would face extreme strict quarantine policies and possible unfair treatment as China authorities criticized the incoming positive cases for many times. Also, Australian government advised the risk to travel to China now is “high degree of caution”.

    Therefore, I kindly request your AAT member to take the whole situation into account when making decisions on my AAT application.

    (sic.)

15. On 18 May 2022, the Applicant attended the Tribunal hearing and was assisted by an interpreter. At the conclusion of the hearing, the Tribunal made an oral decision affirming the delegate’s decision not to grant a visa. A written confirmation of the outcome of review was provided to the Applicant by email later that day.

16. On 7 July 2022, the Applicant requested the Tribunal’s written statement of reasons which was subsequently prepared and dated 21 July 2022 (Reasons).  

    The Tribunal’s decision

17. The Tribunal found that, at the time of his application for the Visitor visa, the Applicant:

    (a)was in Australia;

    (b)did not hold a substantive visa; and

    (c)did hold a bridging visa,

    Reasons at [10].

18. The Tribunal found that the Applicant’s last substantive visa was a Higher Education Sector Subclass 573 visa, which was last held on 15 March 2018: Reasons at [12]. Also that the Applicant had applied for the Visitor visa 1,322 days (or 3 years, 7 months and 12 days) after the last day on which he had held a substantive visa: Reasons at [13]. This being a period that exceeded the statutory 28-day period: Reasons at [14].

19. The Tribunal observed the Applicant’s explanation that he was “not focussed due to the COVID-19 pandemic”. Although it expressed “great sympathy” for the Applicant’s circumstances surrounding the COVID-19 pandemic, the Tribunal found those circumstances were not relevant to the statutory criteria and there was no discretion to consider matters beyond the statutory criteria: Reasons at [15]-[16].

20. In conclusion, the Tribunal found that the Applicant did not satisfy both cl.600.223 by not holding a substantive visa at the time of the application, and criterion 3001 by not lodging the application within 28 days of the last substantive visa Reasons at [14] and [17]. The Tribunal affirmed the decision of the delegate not to grant the Applicant the Visitor visa: Reasons at [18].

    Proceedings before this Court

21. At 3.25pm on 1 July 2022, the Applicant personally attempted to lodge through the Court’s portal:

    (a)an application for judicial review which included a request for an extension of the time for filing (signed and dated 29 June 2022); and

    (b)an affidavit which annexed the delegate’s decision record and a copy of the Tribunal’s outcome of review and contained no other evidence (sworn 29 June 2022).

22. At 1.55pm on 5 July 2022, the application and affidavit were accepted for filing by the Court’s registry.

23. On 26 August 2022, a response was filed on behalf of the First Respondent contending that the Court did not have jurisdiction to review the Tribunal’s decision as the application was filed out of time. Further, that the Applicant had not filed any evidence to explain the delay or why it is in the interests of the administration of justice that the time be extended. The response also contended that the Court does not have jurisdiction to review the delegate’s decision as s.476(2)(a) of the Act applied and that the Applicant’s application for review failed to establish any jurisdictional error in the Tribunal’s decision and lacked particularisation.

24. On 23 September 2022, procedural orders were made by a Registrar of this Court and the matter was set down for hearing on a date to be advised and filing directions were issued.

25. On 6 October 2022, the First Respondent filed a court book.

26. On 15 March 2023, the parties were notified that this matter was listed for final hearing before the Court as presently constituted and were issued with an updated program for filing.

27. On 17 April 2023, the First Respondent filed an outline of written submissions.

28. At the hearing on 27 April 2023, the Applicant attended in person with the assistance of an interpreter and the First Respondent was represented by Counsel.

29. At the time of the hearing and these reasons, the Applicant had not filed any further evidence or submissions as directed.

30. At the outset of the hearing, with the assistance of the interpreter, the Applicant confirmed that he had received and understood the First Respondent’s written submissions in advance of the hearing. The Applicant also indicated that he may have been represented by a lawyer and so the matter was stood down to allow him to contact that person. Following the adjournment, the Applicant confirmed that he did not seek an adjournment of the hearing and that this person was assisting him as a friend and did not intend to appear as the Applicant’s representative.

    APPLICATION FOR AN EXTENSION OF TIME

    Was the application filed late?

31. Under s.477(1) of the Act, an application to this Court is to be filed within 35 days of the date of the Tribunal’s decision.

32. The Tribunal’s decision was made on 18 May 2022. Therefore, an application for judicial review in this Court was due to be filed by 22 June 2022.

33. The Applicant did not attempt to file his application until 1 July 2022.

34. According to the Court’s record, the application and supporting affidavit were not accepted for filing in accordance with r.2.05(3) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) until 5 July 2023.

35. Accordingly, the application for judicial review was not “made” until 13 days after the expiry of the statutory timeframe.

    Should the Court be satisfied to make an order extending time?

36. Section 477(2) of the Act provides that the Court may grant an extension of the 35-day period within which an application must be made if satisfied that it is necessary in the interests of the administration of justice to make the order.

37. The statute does not specify particular criteria which must be satisfied to establish the sole mandatory consideration that it is in the “interests of the administration of justice” to grant such an extension.

38. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision:

    Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

    See also: Katoa at [35], [39] and [62] (Gordon, Edelman and Steward JJ); AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [10]; BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 at [17].

39. Although it is often appropriate to assess merits at a “reasonably impressionistic level” or at a “threshold level” in terms of whether the proposed ground(s) “enjoy[s] reasonable prospects of success”, the High Court in Katoa held that it is within the Court’s jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]-[19]. For example, at [18]:

    If the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard.  In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.

40. By the application in the present matter, the Applicant specified five grounds as to why he considered it necessary in the interests of the administration of justice to make the order for an extension of time, as follows:

    1.The applicant tried to create an account with Cth eLdogment on 17/6/2022, three business days before the due time to apply for a judicial review. However, the applicant has yet to receive any confirmation from the FCA

    2.The applicant contacted FCA via Live Chat on 21/6/2022 and was advised by a staff named P.Balmer that no accounts had been made.

    3.The applicant emailed the Vic Registry on 21/6/2022 to lodge an application review the decisions made by the respondents.

    4.On 29/6/2022, the applicant found out that the Vic Registry replied to his email on 21/6/2022 but the response was sent as a junk mail to his spam.

    5.The applicant content that an extension should be approved as the delay was not significant and was due to technical issues and was out of his control.

    (sic.)

41. At the hearing of the matter, the Applicant elaborated on the request for an extension of time mainly by submissions as to the merit of his substantive application (outlined further below).

42. I turn now to consider this application in light of the factors about which the Court was addressed as relevant to the exercise of the discretion.

    Delay and explanation

43. There is no dispute in the present case that the application was filed outside the statutory timeframe and the delay was “short” (whether it was 13 days, as I have concluded, or 9 days as the First Respondent was prepared to accept).

44. There is no evidence before the Court as to the Applicant’s reason or explanation for the delay. For present purposes, the Applicant’s written and oral submissions are taken at their highest.

45. The Applicant did not claim to be unaware of the Tribunal’s decision or the statutory timeframe. The materials before the Court support a conclusion that the Applicant was aware of the Tribunal’s decision and the statutory timeframe for filing before the detailed Reasons were supplied on 21 July 2022. Specifically, on his own version of events:

    (a)at least by 17 June 2022, the Applicant had attempted to create an eLodgment profile in the Commonwealth Courts portal; and

    (b)by 29 June 2022, the Applicant had finalised the application materials (signed that day) and was aware that the application was late because he included a request for an extension of time in his application form.

46. By its submission, I understood the First Respondent to accept that there was an adequate explanation for at least that part of the delay from the first attempt to lodge on 1 July 2022 until the lodgement was accepted for filing on 5 July 2022.

47. Even accepting this the Applicant did not satisfactorily explain why, having attended to the matter of filing on 17 June 2022 (4 days prior to the last day for filing), he was finalising his paperwork on 29 June 2022 (7 days after the last day for filing) and did not actually attempt to lodge until 1 July 2022 (9 days after the last day for filing). And, if there were technical difficulties with using the Commonwealth Courts portal from 17 June 2022, there was no explanation as to why other available methods of filing, for example by email or facsimile, were not utilised. In my view, technical difficulties of the kind described by the Applicant might legitimately explain delay comprising no more than a matter of hours (if not a day) and does not reasonably explain the two week period between the first difficulty the Applicant encountered on 17 June 2022 and his first attempt at lodgement on 1 July 2022.

48. The explanation for the delay weighs against an extension of time in this matter.

    Prejudice to the Respondent

49. The First Respondent properly accepted that it would suffer no prejudice other than costs were an extension granted. Costs being a matter that may be rectified in the event the application were to proceed.

50. The mere absence of prejudice is insufficient to warrant the grant of an extension: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].

51. I assess this as a neutral consideration.

    Merit of the substantive application

52. The statutory time limitation for making an application for judicial review reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a decision of the Tribunal. While the discretion of the Court is broad, if it is proper to conclude that a claim is bound to fail then the Court should decline to extend time.

53. The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the grounds available to the Applicant in the substantive application are reasonably arguable.

1. The two grounds of the Applicant’s substantive application were expressed as follows:

   1.The first respondent failed to give meaningful consideration to evidence advanced by the Applicants.

   Particulars

   a. The first respondent made a decision to refuse the subclass 600 visa application on the ground of the applicant does not meet Schedule 3 criteria 3001 of regulation 600.223(2)

   b. The respondent failed to advise and invite the applicant to provide further information with respect to PIC 3003.

   2. The second respondent failed to give meaningful consideration to evidence advanced by the Applicants.

2. The First Respondent submitted that both grounds lacked merit. And, in any event, relief ought to be refused on the basis that it would be futile to remit the matter to the Tribunal because the Applicant cannot meet the requirements of criterion 3001 of the Regulations.

3. It was a requirement for the grant of the Visitor visa that the Applicant satisfy the primary criteria, including cl.600.223(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations):

   (2)  If the applicant was in Australia at the time of application, and did not hold a substantive visa:

   (a)  the last substantive visa the applicant held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; and

   (b) the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

4. Criterion 3001 of Schedule 3 of the Regulations provided:

   (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   …

   (c)       if the applicant:

   …

   whichever is the later of:

   (iii) the last day when the applicant held a substantive or criminal justice visa; or

   …

5. It is not contentious that, at the time of the application for the Visitor visa, the Applicant did not have a valid visa and his last held substantive visa was the Subclass 573 Higher Education Sector visa which had expired more than 28 days prior. The Applicant accepted these facts in his materials that were filed with and before the Tribunal and further accepted those facts before this Court.

6. At the hearing the Applicant acknowledged that his Visitor visa application had been filed more than 28 days after the expiry of his last substantive visa and wanted the Court to know:

   I accept 100% it was my responsibility for missing out the expiry date of my visa and also I would like to say that I called the Immigration office and that they gave me some directive instructions and that is also actually happened. And at the time, all I cared was to stay in Australia legally, to deal with some matters. And, my main purpose for this application is not to leave the impression that I was deliberately trying to disobey the law, I just want to have a clear record so that won’t affect my future plans to come to Australia. I don’t really care about staying Australia.

7. It ought be observed that, at the hearing before this Court, the Applicant presented as contrite and earnest about his desire to clear his name or record in order to come to Australia again in the future. The Applicant also articulated in oral submissions that whilst in Australia without a substantive visa his business was making a positive contribution to Australia. Unfortunately, were the substantive application to proceed, the matters raised by the Applicant would not assist him in overcoming the plain statutory criterion at 3001 of Schedule 3 to the Regulations. By that provision at the relevant time, there was simply no basis to allow the Visitor visa application without demonstration of the Applicant having made the application within 28 days of holding a valid substantive visa.

8. The Applicant has not identified any arguable error of jurisdiction. Further, on the materials before the Court including the critical facts to which the Applicant admitted, the Applicant’s substantive application for review plainly can not succeed such that there is no justification for further inquiry or testing of the merits.

9. The merits weigh strongly against granting an extension in this case.

   CONCLUSION

10. The application in this case being filed outside the statutory timeframe, the Court may only grant an extension of the time within which the application was to be made if satisfied such extension is in the interests of the administration of justice.

11. Weighing all of the considerations above, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The application will be dismissed with costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated:       4 May 2023