Wei v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1392
•16 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wei v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1392
File number(s): SYG 1815 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 16 December 2024 Catchwords: MIGRATION – Extension of time application – Short delay and satisfactory explanation – no prospects of success – application dismissed Legislation: Migration Act 1958 ss 359, 359C, 360, 363A, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 27.03
Cases cited:
FRA18 v Minister for Home Affairs [2019] FCCA 2287
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
Re Commonwealth; ex parte Marks (2000) 177 ALR 491; [2000] HCA 67
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 889
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 9 December 2024 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Solicitor for the First Respondent: Mr Knuckey, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1815 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YANMEI WEI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
16 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application for extension of time filed on 29 July 2020 pursuant to s 477(2) of the Migration Act 1958 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS:
By application, filed on 29 July 2020, the applicant seeks an order under s 477(2) of the Migration Act 1958 (Cth) (the Act) to extend time for her to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 23 June 2020. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant a Student (Subclass 500) visa (the visa)
BACKGROUND
The applicant is a 37-year-old female citizen of China. She applied for the visa on 5 October 2018.
On 13 March 2019, the delegate refused to grant the applicant the visa because the delegate was not satisfied the applicant was a genuine temporary entrant.
On 2 April 2019, the applicant applied to the Tribunal for review of the delegate’s decision. On 23 April 2020, the Tribunal sent the applicant an invitation under s 359(2) to provide information to satisfy the requirements that she was enrolled in a registered course of study and that she was a genuine applicant for entry and stay as a student. The applicant was required to provide the information by 7 May 2020.
On 7 May 2020, the applicant emailed the Tribunal seeking an extension of time to provide the information. On 8 May 2020, the Tribunal sent a letter to the applicant granting her an extension of time, until 3 June 2020, to provide the information requested in the s 359(2) invitation.
The applicant did not provide the requested information. On 23 June 2020, the Tribunal affirmed the delegate’s decision as it was not satisfied on the evidence before it that the applicant was enrolled in a course of study.
THE TRIBUNAL’S DECISION
The Tribunal noted that the applicant had not responded to the s 359(2) invitation, as extended, which sought information, inter alia, as to her enrolment in a registered course of study. Consequently, s 359C was engaged such that pursuant to s 360 and 363A of the Act, the applicant had no entitlement to a hearing. In the circumstances, the Tribunal proceeded to a decision without taking further steps to obtain the information.
The Tribunal identified that the dispositive issue on review was whether the applicant was enrolled in a course of study as required by cl 500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The Tribunal outlined and acknowledged the applicant’s extensive study history. It noted that she had first arrived in Australia in September 2004 and completed a number of courses. It observed that the most recent course the applicant was enrolled in (according to the Confirmation of Enrolment) was an Advanced Diploma of Leadership and Management which commenced in October 2019 and ended in April 2020. There was no evidence that the applicant had completed this course.
The Tribunal stated that there was no evidence before it that the applicant was enrolled in a current course of study and therefore it could not be satisfied that the applicant met the requirements for the visa in cl 500.211(a). Consequently, the Tribunal affirmed the decision under review.
APPLICATION TO THE COURT
The application which commenced proceedings in this Court contains four grounds pertaining to the extension of time and one proposed ground of judicial review.
The applicant filed an affidavit, affirmed on 29 July 2020, which annexed a copy of the Tribunal’s decision record.
The Minister filed written submissions on 21 December 2020 in accordance with Orders of a Registrar of the Court.
The parties appeared before the Court at a hearing on 9 December 2024. The applicant appeared in person assisted by an interpreter in the Mandarin and English languages. Mr Knuckey, a solicitor, appeared on behalf of the Minister.
The Court Book was tendered by the Minister at the hearing and marked exhibit CB.
The application for judicial review filed by the applicant only sought orders to quash the Tribunal’s decision and did not seek a writ of mandamus requesting the matter be remitted to the Tribunal. An application that fails to seek a writ of mandamus or prohibition, or an injunction, has the result of the application not properly invoking the Court’s Jurisdiction in the matter pursuant to s 476(1) of the Act: FRA18 v Minister for Home Affairs & Anor [2019] FCCA 2287 at [15] & [21]. Noting that the applicant was unrepresented, the Court proposed that the application, filed on 29 July 2020, be amended to seek a writ of mandamus. The Court has the power to do this, even on its own motion: Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 889 [44]–[51]. There being no objection by the Minister, the Court so ordered.
Being mindful that the applicant was unrepresented, the Court explained to her how the hearing would proceed and the matters that would normally be considered by the Court, which it noted were not exhaustive, when determining whether time should be extended to enable her to pursue her substantive application for judicial review.
CONSIDERATION OF THE EXTENSION OF TIME APPLICATION
The applicant did not commence proceedings in this Court within the 35-day period prescribed by s 477(1) of the Act.
Under s 477(2) of the Act, the Court has the power to extend the 35-day limit if:
(a)the applicant has requested the extension of time in writing and provided reasons for why it is necessary in the interest of the administration of justice for time to be extended; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice for time to be extended.
The applicant has sought an order (in writing) that the time for making the application be extended under s 477(2) of the Act. She provided the following grounds (without alternation) in support of her application for extension of time:
1. My parents got food poisoning and been sent to hospital. Last months, I consider about go back to China, but for COVID-19. I can’t. I can provide the doctor certificate if necessary.
2. I have to looking for new place and move house myself during COVID-19 it’s very hard.
3. The Justic of the Peace service not available very often in current situation.
4. I am experience my most hard time in my life in pass 3 months.
The application includes one proposed ground of judicial review which is produced below (without alteration):
1.The AAT did not send me the time for hearing. So therefore I can explain my situation in the Court more detail.
At the hearing, the Court explained to the applicant that the circumstances the Court would consider, which it noted were non-exhaustive, when considering whether to grant an extension of time, generally included: the length of the delay; the explanation for the delay; any prejudice to the Minister; and whether the substantive grounds of the judicial review application have any merit: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176 and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [13].
In considering whether the grounds of the judicial review application have any merit, the Court need only do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110.
The applicant was invited to make oral submissions in relation to each of the circumstances and the Court has considered those submissions.
Applicant’s Submissions
The applicant did not file any written submissions in support of her application for an extension of time but did provide oral submissions.
The applicant stated at the hearing that the reasons for the delay in filing the application were that at the time her parents were ill after eating poisonous mushrooms and she had moved house a few times and consequently she had not paid attention to the timeframes for filing.
As to the merits of the proposed ground of judicial review, the applicant stated that before the Tribunal made a decision, she was not aware that the Tribunal would determine her matter without a hearing if she did not reply to the s 359 invitation sent to her. The applicant could not remember if she had read the correspondence from the Tribunal and ultimately accepted that she did not fully read the s 359 invitation and the letter from the Tribunal granting her an extension. Nonetheless, she accepted that it was sent to her. She stated that if the Tribunal had invited her to a hearing, she could and would have attended.
The applicant also stated that she did not consider it necessary to respond to the s 359 invitation regarding the genuine temporary entrant criteria because she had already provided that information to the delegate and that the information would have been the same. She also said she thought there was nothing in writing that she could add to assist her case before the Tribunal but would rather address the matters orally at a hearing before the Tribunal. However, she stated that she did not read the s 359 invitation fully as she thought she would still be able to attend a hearing even if she did not respond.
Minister’s Submissions
The Minister submitted that although the applicant’s delay in filing was short, being one day, she had not explained the reason for the delay by affidavit evidence contrary to r 27.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. Further, the grounds for the extension in the application fail to provide a satisfactory explanation for the applicant’s delay and are not supported by any evidence and do not detail how the grounds prevented the applicant from filing the application.
As to prejudice, the Minister accepted that no prejudice (other than costs) would be experienced if time was extended, but nevertheless contended that the mere absence of prejudice to the respondent is not enough to justify an order to extend time: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176 at [21]. The Minister submitted that he should not be put to the burden and cost of additional litigation where the delay remains unsatisfactorily unexplained, and the proposed grounds lack merit. Further, there is a public interest in the finality of litigation in administrative decision: Re Commonwealth; ex parte Marks (2000) 177 ALR 491.
As to the merits of the proposed judicial review grounds, the Minister submitted that the sole ground, that the Tribunal did not send her the time for the hearing, does not disclose jurisdictional error. This is because the applicant had lost her entitlement to appear at a hearing and the Tribunal had no power to invite her to a hearing or conduct a hearing in circumstances where a valid s 359 invitation was sent, an extension was granted to the applicant to respond to that invitation and ultimately the applicant did not provide the requested information to the Tribunal within the (extended) prescribed period. The entitlement to a hearing was lost due to the operation of s 360(3) which makes clear that an applicant is disentitled from a right to appear if under s 359C(1)(a), the applicant had been both invited in writing to give information and the information was not given within the specified time.
As to the applicant’s oral submission that she did not respond to the s 359(2) invitation because she had provided the genuine temporary entrant criteria information to the delegate, the Minister submitted that the Tribunal, looking at the applicant’s matter afresh, sought information as to the genuine temporary entrant criteria and also that she satisfied the primary criteria that she was enrolled in a course of study. The Tribunal was not satisfied that the applicant was enrolled in a course of study and did not determine the case based on the genuine temporary entrant criteria. In responding to the Minister’s submissions, the applicant told the Court that she had not continued with her studies after the delegate refused her visa application.
For the reasons that follow, the Court is not satisfied that it is in the interest of administrative justice to grant the extension of time.
Length of the Delay
The applicant commenced proceedings in this Court on 29 July 2020, being only one day outside the prescribed period of 35 days from the date of the Tribunal’s decision. The Court considers a delay of one day to be minimal.
Explanation for the Delay
The applicant’s submissions as to her personal difficulties that led to her filing the application late included the ill health of her parents, the circumstances of the COVID-19 pandemic period, and moving house.
While the Minister submits, and the Court accepts, that the applicant has not filed any affidavit evidence explaining the delay, the Court is willing to accept that the applicant has given a satisfactory explanation as to the delay, keeping in mind that the delay was only for one day. This consideration weighs slightly in favour of granting the extension of time.
Prejudice to the Minister
The Court accepts that there is a benefit to the finalisation of proceedings, especially when it relates to government decision making. The Court is also mindful that the mere absence of prejudice is not a sufficient basis to grant an extension of time: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 349 per Wilcox J. Nevertheless, as the Minister has conceded, there would be no real prejudice, save as to costs, if time were extended. This consideration weighs slightly in favour of granting the extension of time.
Merits of the Proposed Application
In determining whether an extension of time should be granted, the Court has considered, at a reasonably impressionistic level, whether the proposed ground in the application for judicial review has any reasonable prospect of success.
The applicant’s proposed ground of judicial review is that the Tribunal did not send her the time of the hearing. By this ground, the applicant alleges a failure on the part of the Tribunal to comply with the obligation in s 360(1) of the Act (as it then applied) to invite the applicant to appear before it to give evidence and present arguments in relation to the issues in the review.
Section 360(1) places an obligation on the Tribunal to invite the applicant to a hearing, however, this is qualified by s 360(2) of the Act. One of those exceptions is where s 359C(1) applies to the applicant: s 360(2)(c) of the Act. Section 359C(1) of the Act (as it then applied) provides that if the applicant is invited in writing under s 359 to give information and does not do so before the time for giving that information has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information. Section 360(3) provides that if any of the paragraphs in subsection (2) apply, the applicant is not entitled to appear before the Tribunal. Further, s 363A of the Act states that if a provision in Part 5 states that a person is not entitled to do something, then the Tribunal does not have the power to permit the person to do to that thing.
The evidence before the Court is that the applicant was sent an invitation, pursuant to s 359(2) of the Act (as it then applied), to provide information. The s 359 letter, which was sent to the applicant on 23 April 2020, informed the applicant that if she did not respond she would lose any entitlement she might otherwise have had under the Act to appear before it.
The invitation was properly sent to the applicant’s last email address as provided by the applicant in connection with the review: s 379A of the Act. The applicant responded to the invitation on 7 May 2020 by email in which she requested an extension of time to provide information. The Tribunal granted the extension of time and informed the applicant that the period by which she must provide the requested information had been extended to 3 June 2020. The letter again informed the applicant that if the information was not received by 3 June 2020, a decision may be made on the review without further action being taken and she would lose any entitlement she might otherwise have had to appear before the Tribunal at a hearing. That correspondence was also properly sent to the applicant at the last email address provided in connection with the review application.
The Tribunal invited the applicant to provide information pursuant to s 359(2) of the Act. The effect of ss 359C, 360 and 363A is that, because the Tribunal invited the applicant to provide information pursuant to s 359(2), and the applicant failed to provide that information before the period had passed, the Tribunal had no power to permit the applicant to appear before it to give evidence and present arguments: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413.
The Tribunal correctly explained at [6] of its decision that it was constrained by the provisions in the Act and that it had no power to permit the applicant to appear before it at a hearing. In the circumstances, there was no failure on the part of the Tribunal to comply with the obligation in s 360(1) of the Act.
The Court is not satisfied that the proposed ground of review, on an impressionistic assessment, has any prospect of success.
The Minister, as a model litigant, also sought to address the applicant’s complaint about the Tribunal proceeding to a decision without giving her a further opportunity to provide evidence. The applicant’s complaint appears to allege legal unreasonableness on the part of the Tribunal in not adjourning the review to enable the applicant to provide further information: s 363(1)(b). It is well established that the Tribunal’s exercise of a statutory discretion, as in s 363(1)(b), must be reasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63] per Hayne, Kiefel and Bell JJ. The Court accepts, as contended by the Minister, that in circumstances where the applicant had sought an extension of time, which was granted, and where the applicant made no further contact with the Tribunal and was on notice that the Tribunal may proceed to a decision without taking further steps to obtain the information, it was not unreasonable for the Tribunal to make the decision it made.
At [5] and [6] of its decision, the Tribunal set out the history of its dealings with the applicant. It observed that the applicant had been granted an extension of time to provide the information requested, that the applicant failed to provide the information, either before or even after the period had passed. The period, as extended, ended on 3 June 2020 and the Tribunal did not make its decision until 23 June 2020. Having received no further correspondence from the applicant up until it made its decision, and in circumstances where the applicant had lost their right to a hearing, it was not unreasonable for the Tribunal, for the reasons it gave, to proceed to a decision without taking further steps to obtain the information.
No error is disclosed by the Tribunal deciding to proceed to a decision on the information before it. Accordingly, the Court is not satisfied that any allegation of unreasonableness (in the legal sense) on the part of the Tribunal, on an impressionistic assessment, has any prospect of success.
The Court is not satisfied that the grounds of judicial review, as raised by the applicant or identified by the Minister, have any merit. This factor weighs heavily against granting an extension of time.
CONCLUSION
As the Court is not satisfied that the applicant’s proposed ground (or identified ground) of judicial review has any prospect of success, despite the short delay and explanation for the delay, the Court is not satisfied that it is necessary in the interest of the administration of justice to grant the applicant an extension of time to seek judicial review of the Tribunal’s decision.
For these reasons, the application for an extension of time is dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 16 December 2024
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