Yao v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 733
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yao v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 733
File number(s): MLG 37 of 2023 Judgment of: JUDGE MANSINI Date of judgment: 17 August 2023 Catchwords: MIGRATION – Third application for an extension of time for judicial review of a decision of the Administrative Appeals Tribunal – where this third application was lodged 1,594 days after expiry of the statutory timeframe – where substantive application is futile and lacks merit – extension of time ought not be granted – application refused. Legislation: Migration Act 1958 (Cth) ss.338, 347, 476(1), 476(4), 477(1), 477(2), 486D
Migration Regulations 1994 (Cth) cl.500.212
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r.13.13
Cases cited: Nguyen & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (High Court of Australia, Steward J, 22 July 2022)
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 10 August 2023 Place: Melbourne Applicant: Litigant in person Solicitor for the First Respondent: Mr A Slevison ORDERS
MLG 37 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JIANPING YAO
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
17 August 2023
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.There be no order as to costs.
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
This decision concerns an application for an extension of the time for filing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).
This is the third application of its kind in relation to the Tribunal’s decision not to grant the Applicant a Student (Temporary) (class TU) Student (subclass 500) visa (Student visa). It was filed 1,594 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 filing period, the application is dismissed. The reasons for this decision follow.
FACTUAL CONTEXT
The following is a summary of the relevant facts, as deposed by the Applicant (who was not cross-examined about his evidence) and contained in the Respondent’s Department of Home Affairs (as it then was) (Department) file.
The Applicant is a citizen of China.
On 1 February 2018, the Applicant applied for a student visa. According to official records, which evidence is not disputed, the Applicant was not present in Australia at the time of the application or until 2.27pm on 2 February 2018. The application nominated a contact email address of a migration agent.
On 9 February 2018, a delegate of the First Respondent refused to grant the Applicant a student visa as the delegate was not “satisfied that the applicant intends genuinely to stay temporarily in Australia” and therefore the Applicant did not meet the requirements of the visa under cl.500.212 of the Migration Regulations 1994 (Cth) (Regulations) (delegate’s decision). A copy of the delegate’s decision was sent to the Applicant’s nominated email address. The accompanying letter relevantly included the following:
We cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.
This review period is prescribed in law and an application for merits review may not be accepted after that date.
On 21 February 2018, the Applicant applied to the Tribunal for review of the delegate’s decision and continued to nominate the email address of the migration agent.
On 28 June 2018, the Tribunal wrote to the Applicant’s nominated email address with an invitation to comment on the validity of the application for review. The letter relevantly included the following:
In order to have made a valid review application, you must have been in Australia at the time the visa application was lodged with the Department of Home Affairs on 1 February 2018. It appears that you were not in Australia on that date, and I am therefore of the view that your review application is not a valid application. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 12 July 2018. Upon receipt of your response, your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 11 July 2018, the Applicant’s migration agent replied to the Tribunal with a written letter on behalf of the Applicant which stated:
To whom it may concern,
This is Jianping YAO responding to the case number 1804538. I applied for the AAT review for my student visa decision on 21/02/2018. On the visa refusal notification, I received on 9/02/2018, it is clearly stated that “The decision can be reviewed” and there is instruction for applying for AAT review in following paragraph. I followed the instructions and applied the AAT review within the request timeframe. Therefore, at the point of making the AAT review application, I believe I was doing everything correctly.
I’m a student and do not have any knowledge about the laws and regulations especially for the Australian one. I don’t know where to find related migration laws to refer to my case and I believe there’s no visa applicant would check the migration law by themselves before lodging the visa applications. The instruction from the authority (The Immigration Department) to me is absolute and I didn’t doubt about single information mentioned on the notification.
As I aware that I can continue to study in Australia during the period I’m waiting for the AAT review, I made and arranged my study plan with such scenario. I’m now in the middle of my study in University of Tasmania and I just want to continue my study progress. I didn’t expect that the authority could made such serious mistake and I’m really frustrated about my situation as it seems the two authorities (The Immigration Department and Administrative Appeals Tribunal) are pushing me to the gap of the law. I’m really disappointed to the authorities and I would like to have an official response in regard to this matter and also, I need the authority to advise me how my case to be settled at this point.
Best regards,
…
(sic.)
On 23 July 2018, the Tribunal provided a notification of decision to the Applicant’s nominated email address and a copy of its decision and reasons dated 20 July 2018 (Reasons).
The Applicant’s evidence was that, from July 2018 to November 2018, he completed his first semester at the University of Tasmania and frequently inquired with his migration agent as to the progress of his review application and was told there were no updates. Then, in December 2018, the Applicant checked his visa status and learned his bridging visa had been cancelled.
On 31 December 2018, the Applicant made a Freedom of Information (FOI) request. On 18 January 2019, he received a copy of the Tribunal’s decision via the FOI response.
The Tribunal’s decision
The Tribunal found that it did not have jurisdiction to review the delegate’s decision.
The following paragraphs of the Tribunal’s Reasons are most pertinent:
[3] Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.
…
[6] The Department’s movement records show the applicant had departed Australia on 23 January 2018. The application returned to Australia on 2 February 2018. The applicant was not in Australia at the time of lodgement of his visa application. The applicant was not in the Australian ‘Migration zone’ as defined at the time of lodgement of his visa application.
[7] The Tribunal finds that the applicant was not in the migration zone at the relevant time. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.
(sic.)
The applications for judicial review in this Court
On 30 January 2019, the Applicant filed an application for review in the Hobart registry of this Court seeking an extension of time to review the Tribunal’s decision (first application for judicial review).
On 22 February 2019, the Applicant filed an application to have the first application for judicial review transferred to the Melbourne registry of this Court.
On 26 February 2019, the Applicant discontinued his first application for review.
On 27 February 2019, the Applicant filed an application for review in the Melbourne registry of this Court, seeking an extension of time to review the Tribunal’s decision (second application for judicial review).
On 9 December 2022, another Judge of this Court summarily dismissed the second application for judicial review pursuant to rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Court’s Rules). In that decision, the Judge found that the Applicant had not complied with s.486D of the Act because he had not disclosed the first application for judicial review at the time he made the second application for judicial review.
On 4 January 2023, the Applicant filed this application for an extension of the time in which to seek judicial review of the Tribunal’s decision (third application for judicial review), along with an affidavit of the Applicant sworn and dated 20 December 2022.
On 19 January 2023, the First Respondent filed a response to the third application for judicial review.
Orders were made on 14 April 2023 for programming and hearing of the application for an extension of time in relation to the third application for judicial review.
On 25 July 2023, the Applicant filed a further affidavit and an outline of submissions.
On 3 August 2023, the Respondent filed an outline of submissions.
On 10 August 2023, at the Applicant’s request (which was not opposed), the matter proceeded to hearing by Microsoft Teams. The Applicant was not represented and was assisted by a Mandarin interpreter. The First Respondent was represented by a solicitor.
APPLICATION FOR AN EXTENSION OF TIME
Was the application filed late?
An application for a remedy under s.476 in relation to a migration decision must be made to this Court within 35 days of the date of the migration decision: s.477(1) of the Act.
The Tribunal’s decision was dated 20 July 2018.
An application for judicial review in this Court was due to be filed by 24 August 2018. Not being lodged electronically until 4 January 2023, this third application for judicial review was made 1,594 days (or 4 years, 4 months and 11 days) after the expiry of the 35-day period.
Should the Court be satisfied to make an order extending time?
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made as the Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
The statute does not specify particular criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.
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); SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at 451 [46] – [48], Foster J.
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.
By the application in the present matter, the Applicant specified a single ground 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:
I applied for a student visa through an agent (i.e., STG international service group), and after my visa was refused, I entrusted my agent to help me apply for an AAT review. Due to the irregularity of the agent, they just lodged the application and without notifying me of the outcomes. My agent did not send me any documents from the AAT, but asked me to pay the money. It was until I applied for the AAT FOI that I knew the decision of my AAT review and other documents. I think I was totally deceived and given up by them, I could not contact and find them in despair. I hope I could be given a chance to re-appeal by extending the time.
(sic.)
Delay and explanation
In this case there was a lengthy period of 1,594 days’ delay.
By the grounds of the application for an extension of time and the Applicant’s affidavits, the Applicant’s explanation for the delay may be summarised as:
(a)His reliance on the migration agent, on account of which he was not aware of various correspondence from and to the Tribunal (including, importantly, the Tribunal’s Reasons) until he received the response to his FOI request on 18 January 2019; and
(b)His lack of familiarity with the justice system, which resulted in withdrawal of the first application for judicial review and filing the second application for judicial review without disclosure of the prior application.
The Respondent asked the Court to accept the Applicant’s explanation for the delay.
Without making any finding as to whether there was representative error on the part of the migration agent (who was not called to give evidence in these proceedings but was known to have subsequently had their registration cancelled) I accept the Applicant’s evidence that he was unaware of the Tribunal’s decision until receipt of the FOI response on 18 January 2019. This is supported by the fact of the FOI application which demonstrates that the Applicant actively sought to follow up on his application to the Tribunal.
It is uncontroversial that there was then a period of delay pending determination of the second application for judicial review. By that determination, the second application for judicial review could not proceed being a matter that the Applicant sought to rectify in filing this third application for judicial review.
On the evidence before the Court and in my view, the Applicant has offered an explanation for substantial parts of the delay which were attributable to unusual matters, largely outside of his control. Further on each occasion, after: receipt of the FOI information; withdrawal of the first application for judicial review; and receipt of the judgment in the second judicial review application, the Applicant acted relatively promptly.
The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: see, WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of a long delay: Tran, at [38].
Having regard to the Applicant’s explanation, I consider the delay although incredibly lengthy does not weigh against the grant of the extension of the time for filing.
Prejudice to the Respondent
The First Respondent properly accepted that there would be limited prejudice should the application be granted.
However, 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].
In my view this is a neutral consideration.
Merits of proposed grounds
The time limitation 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, the Court should not permit the application to proceed and accordingly decline to extend time.
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 are reasonably arguable.
The 3 grounds of the substantive application were expressed as follows:
1.I am not satisfied with the decision made by the authority. The assessing officer commented on my AA T review for my student visa application and said that they had no jurisdiction to determine my application, which I think is a judgment error. On the visa refusal notification, I received on February 9, 2018, it has been clearly stated that "the decision can be reviewed" and there has been the instruction for applying for AA T review in the following paragraphs. I followed the instruction and applied for the AA T review within the request time. I had no idea about the migration laws and regulations in Australia, the instruction from the authority (The Immigration Department) to me is absolute and I did not doubt the information mentioned in the notification. In fact, I submitted the application in accordance with the terms of The Immigration Department correctly, the AA T said that they had no jurisdiction. Therefore, I think it is not fair for the decision that AAT made for the review of my student visa application.
2.The officer believed that I am not a genuine student because I have weak incentives to complete my study and return back to China after graduation, which I think it was another judgment error. The officer did not have any idea about my current study and China's economic development, and the officer has no idea about the overall competitiveness of an overseas graduate in China's labour market. I started my Master of Information Technology and Systems program in University of Tasmania in July 2018 and completed all degree requirements by July 2020. The university could prove that I was making satisfactory academic progress, as confirmed by the results achieved in my study. In July 2019, I transferred from the coursework to the research pathway following my supervisor Dr Son Tran, my project was about using machine learning to analyse and predict wine's attributes and quality. In June 2020, I completed my coursework master. Now, I am currently studying at the UTAS as a research master student (student ID: 486948) of Master of Science (Computing) since July 2021, following my supervisors, Dr Son Tran, Dr Samantha Sawyer and Dr Saurabh Garg. My research project is about using Artificial intelligence technologies to detect and classify Plant Leaf Diseases. It will be helpful to the Agriculture industry. I hope I can finish my study and research, and let me learn more about computer vision and deep learning.
3.In 2019, I applied for my first judicial review in Hobart, Federal Circuit and Family Court of Australia (FCFCA), court reference number is LNG2/2019, then I discontinued this application and wanted to transfer my case to Melbourne, FCFCA (court reference number: MLG 528/2019). Because of my unfamiliarity with the legal process, The Hon. Justice in my second judicial review dismissed my proceeding on 09 Dec 2022 because I breached section 486D which is I didn't disclose the first judicial review (Hobart) to the second judicial review (Melbourne). Although after two cases, my problem has never been solved, I hope I can get help this time.
Section 476(1) of the Act confers on this Court the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution. However, this Court’s jurisdiction is limited by the exceptions set out in s.476(2) including “primary decisions”. Section 476(4) defines a “primary decision” as including a privative clause decision that is reviewable under Part 5. This means, this Court does not have jurisdiction to review Part 5 reviewable decisions.
The first ground of review challenged the Tribunal’s decision that the Applicant had not made a valid application for a student visa and it had no jurisdiction to determine the review. Part 5 of the Act provides for review of “Part 5-reviewable decisions” by the Tribunal. Section 338 of the Act defines the term “Part 5-reviewable decision”, applications for which are subject to certain requirements at s.347 (including the form of such application and the persons who may make such application, among other requirements).
With limited exception (neither of which is presently relevant), a decision to refuse to grant a non-citizen a visa is a “Part 5-reviewable decision” as defined in s.338 if: the visa could be granted while the non-citizen is in the migration zone and the non-citizen made the application for the visa while in the migration zone (among other mandatory criteria): ss.338(2)(a) and (b).
In the present case, the application for a student visa could have been granted while the Applicant was in the migration zone but the Applicant was not in the migration zone at the time of making the visa application. Accordingly, the delegate’s decision was not a Part 5-reviewable decision that the Tribunal was empowered to review pursuant to s.338(2).
It is true that the administrative letter accompanying the delegate’s decision outlined the process for the Applicant to apply to the Tribunal to conduct a merits review. That letter was wrong to the extent that it purported to inform the Applicant of a right to apply for such review. That is an unfortunate circumstance and a matter that understandably caused confusion on the part of the Applicant. Nonetheless, the powers of the Tribunal are confined by the statute. The Tribunal was correct in determining that it had no jurisdiction to review the delegate’s decision on account of the Applicant’s failure to meet s.338(2).
The second ground of review challenged the delegate’s conclusion that the Applicant was not a genuine applicant for entry and stay as a student pursuant to cl.500.212 in Schedule 2 of the Regulations. The delegate had determined, incorrectly (for reasons concluded above), that a valid application had been made before deciding to refuse the student visa pursuant to cl.500.212. To the extent that the non-compliance with s.338(2) does not alter the character of the delegate’s decision in that it bore the quality or attribute of a “primary decision” as defined by s.476(4) (or, put another way, as ordinarily a “Part 5-reviewable decision”), this Court has no jurisdiction to review it: s.476(1), see also Nguyen & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (High Court of Australia, Steward J, 22 July 2022).
Were that conclusion not apt, I would nonetheless accept that the Applicant by his second substantive ground of review has asked the Court to engage in a merits review which is not permissible in any event.
The Applicant’s third ground of judicial review does not advance his case as it does not assert any legal error. Rather, it reads as a submission which provides context about the Applicant’s previous judicial review applications.
For the above reasons, the Applicant has not articulated any basis on which the merit of his third application for judicial review could succeed. As the First Respondent conceded, there may be an alternative available avenue which is a matter entirely for the Applicant.
In acknowledgement of the unfortunate administrative error in the letter that accompanied the delegate’s decision, the First Respondent did not seek an order that the Applicant pay its costs of this third application for judicial review were the First Respondent to succeed. In all of the circumstances, I consider it appropriate to dispense with the usual order that the Applicant pay the First Respondent’s costs in the scale amount for an interlocutory hearing.
CONCLUSION
The application in this case being 1,594 days 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.
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 an order that the First Respondent bear its own costs of this third application for judicial review.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 17 August 2023
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