Federal Court of Australia

QXZB v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 891

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed.

2.    The applicant must pay the first respondent's costs of the application, to be assessed on a lump sum basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1    This is an application for an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal. The applicant had been out of time to seek review of a decision by a delegate of the first respondent (Minister) in the Tribunal, and the Tribunal for that reason decided that it had no jurisdiction and dismissed his application. As will be explained, on the face of things the Tribunal's decision was not affected by jurisdictional error. That, and the lack of any good explanation from the applicant as to why he was late in applying to this Court, means that his application for an extension of time will be dismissed.

Background

2    The applicant is a national of Iran. On 28 April 2022, a delegate of the Minister refused to grant him a Temporary Protection (Class XD) visa. The refusal was pursuant to s 501(1) of the Migration Act 1958 (Cth), on the basis that the delegate was not satisfied that the applicant passed the character test. On 5 June 2022, the applicant lodged an application with the Administrative Appeals Tribunal seeking review of the delegate's decision. On 29 June 2022, the Tribunal dismissed the application because it was lodged out of time.

3    Save for a short interlude that will be mentioned below, the applicant has been self-represented in this matter. On 4 October 2022 he applied to this Court for an extension of time, purportedly under r 36.05 of the Federal Court Rules 2011 (Cth). However that rule concerns appeals; what the applicant really needs is an extension of time under s 477A(2) of the Migration Act to seek judicial review of a migration decision pursuant to the Court's jurisdiction under s 476A of that Act. The time limit for applications for judicial review is 35 days (s 477A(1)), so the applicant is approximately two months late. At the hearing on 1 August 2023 I indicated that I would proceed on the basis that the applicant is seeking an extension of time under s 477A(2).

4    The hearing in this matter was listed for 14 June 2023 but ended part heard. That happened because I raised a question about the correctness of the Tribunal's decision which had not been raised by the applicant, but arose on the face of the materials. The time for applying for review in the Tribunal is calculated from the day on which the applicant is notified of the delegate's decision in accordance with s 501G(1) of the Migration Act: s 500(6B). Here, the applicant received the notification documents twice: once on 3 May 2022 and then again on 2 June 2022. As stated above, his application was made to the Tribunal on 5 June 2022. The question that arose was whether, when the applicant was given the documents the second time, the time for him to seek review in the Tribunal started running again. If so, he would have made his application within the nine-day time limit.

5    Counsel for the Minister properly accepted that the applicant should have an opportunity to argue that point. Therefore the matter was adjourned to 1 August 2023 and programming orders were made for the applicant to file and serve any further affidavits, any outline of submissions and any proposed amended draft application for judicial review, and for the Minister to file and serve any further affidavits and submissions. A pro bono certificate was also issued for the applicant to be referred to legal assistance. A legal practitioner experienced in migration law then came on the record for the applicant, but subsequently withdrew. The applicant has not filed any submissions or amended application for judicial review, although he did file a brief further affidavit. The Minister filed further submissions on the question raised above.

Extension of time - principles and reasons for delay

6    The Court has the power to grant an extension of time under s 477A of the Migration Act if satisfied that it is necessary in the interests of the administration of justice to do so: s 477A(2). In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 the High Court reviewed the principles concerning applications to extend time under s 477A. In essence, the discretion is broad, but it may be exercised by reference to matters including: the length of the applicant's delay; the reasons for the delay; prejudice to the respondent, or to third parties, or to the administration of justice; the utility of advancing the case; and the merits of the underlying application: see Katoa at [12], [36], [39]-[40]. It will often be appropriate to assess those merits at a reasonably impressionistic or threshold level, where the inquiry is whether the proposed grounds of review enjoy reasonable prospects of success. But the Court will not fall into error merely because it has made a more than impressionistic assessment: Katoa at [19], [40], [62]-[63].

7    The applicant has filed two affidavits which seek to explain delay. It is not clear, however, what delay he seeks to explain. His first affidavit, dated 4 October 2022, appears to be an explanation as to why he was late in filing his application with the Tribunal, rather than with this Court. His second affidavit, filed 25 July 2023, gives an extremely vague explanation of a delay, based on problems with printers and computers said to have been experienced at the detention centre as well as the fact that a justice of the peace only visits to witness affidavits once a week. What delay is sought to be explained in that affidavit is entirely unclear. When I asked the applicant about it at the hearing of 1 August 2023, he said that the delay the affidavit was explaining was the delay in filing that very affidavit. The programming orders made after the first hearing required any further affidavits from the applicant by 13 July 2023, so in filing it on 25 July 2023 he was out of time. But the affidavit did nothing more than explain why it was out of time. There was no evidence in it of any other matter. So while, in the absence of objection, I received the affidavit into evidence, it did not advance the applicant's case at all.

8    The applicant was thus left in the position of having proffered no explanation for why he was late in applying for judicial review to this Court. That was so after the hearing on 14 June 2023, at which I explained to him that he needed to tell me why he was late in applying to this Court, and that the explanation would have to be in an affidavit. At the second hearing the applicant candidly acknowledged that he had no good explanation for that delay.

9    That alone would be sufficient grounds to dismiss his application for an extension of time. However since I raised a point going to the merits of the underlying application, and the Minister has made submissions on it, it is appropriate to consider the point briefly.

Merits of proposed application for judicial review

10    Other than the point about to be addressed, there is no merit at all in the proposed application for judicial review. The proposed grounds of review give an explanation for why the applicant was late in applying for review to the Tribunal, and do nothing more. The difficulty for the applicant is that his explanation for lateness in applying to the Tribunal is irrelevant, because the time limit under s 500(6B) is absolute, and the Tribunal had no jurisdiction to extend it: Virapornsawun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1699 at [12] (Jagot J) and the cases cited there. So, subject to the point about to be addressed, there is no reason to think that the Tribunal fell into jurisdictional error.

11    The Tribunal carefully described the process by which the applicant was notified of the delegate's decision (for the first time) and it is clear from its reasons that this occurred on 3 May 2022. On that basis, the Tribunal dismissed the application because it was filed out of time. The applicant told the Tribunal that he did not read all of the documents when he received them and subsequently lost the notification letter and asked for another copy of the notification package, which he received on 2 June 2022. The Tribunal found that this did not alter the fact that he was properly notified on 3 May 2022.

12    The question that was raised at the hearing of 14 June 2023, about whether time started running again when the applicant received the second notification package, is a question of the construction of s 500(6B) of the Migration Act. The delegate's decision was to refuse the applicant a visa under s 501(1) because the applicant had not satisfied the delegate that he passes the character test. A decision of that kind is reviewable by the Tribunal, pursuant to s 500(1)(b). Section 500(6B) relevantly provides that an application to the Tribunal for a review of a decision made under s 501(1) 'must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1)'.

13    Section 501G(1) provides that the Minister must give the non-citizen 'a written notice' containing certain information as specified in the section. Similarly, s 501G(3) provides that 'a notice under subsection (1) must be given in the prescribed manner'. There is no suggestion that the notice given on 3 May 2022 did not comply with s 501G or the regulations that prescribe the manner of giving notice, so it is not necessary to set them out.

14    The Minister submits that on the proper construction of the Migration Act, notice that is effective for the purposes of s 501G cannot be given more than once. The Minister relies on what he submits is the literal meaning of the relevant provisions. He submits that the wording of s 501G(1) requiring the Minister to give 'a written notice', and the wording of s 500(6B) imposing a nine-day time limit for making an application to the Tribunal calculated by reference to 'the day on which the person was notified of the decision' means that there is no ability to give notice effective for the purposes of s 501G more than once.

15    The Minister also relies on the explanatory memorandum for the bill that introduced s 500(6B) and related provisions: Explanatory Memorandum, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998. This is said to confirm that the statutory purpose of these provisions is to ensure that merits review to the Tribunal is available within strict and streamlined procedural timeframes. The provisions impose a strict 84-day time frame for completion of the Tribunal's review.

16    The Minister submits that a construction of the Migration Act which means that a second notification could be legally effective for the purposes of s 501G and s 500(6B) would mean that the Minister was effectively empowered to start the time afresh, by subsequently giving the non-citizen another copy of the notification documents, and that would be inconsistent with the purpose of the provisions. He refers by analogy to BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91; (2021) 285 FCR 43, in which it was held by the majority that there was no ability for the Minister to issue a second legally effective invitation to a non-citizen to make representations under s 501CA(3) as to why the mandatory cancellation of their visa should be revoked. The Minister also submits that, as in that case so in this, s 23(b) of the Acts Interpretation Act 1901 (Cth) providing that words in the singular include words in the plural, should not apply to the construction of s 500(6B) and s 501G, because the legislation as a whole evinces a contrary intention.

17    While the Minister's submissions are helpful, in the end it would not be appropriate to reach any firm conclusion about their correctness, in the absence of any good explanation for the applicant's delay, and in the absence of submissions from him on the point. It is enough to say that there is sufficient merit in the Minister's position on its face, to mean that it would not be in the interests of the administration of justice to overlook the applicant's unexplained delay. In the present circumstances, the underlying merits of the application would have to be compelling for a delay to be disregarded in the absence of any explanation.

18    In particular, it appears to me that the ordinary meaning of s 500(6B) in all its context does contemplate that there can be only one notification that will start the time running. It is also the case that the short, nine-day time limit for instituting an application for review under s 500(6B) and the 84-day time limit in s 500(6L) evince a policy to truncate strictly the time that is taken for the Tribunal to review relevant decisions: Somba v Minister for Home Affairs [2019] FCAFC 150; (2019) 269 FCR 517 at [40]. On the face of things, it would undermine that policy if the executive could unilaterally decide to start the nine-day time limit running again, at least at any time within that 84-day time limit.

Conclusion

19    The applicant seeks an extension of time to pursue an application of doubtful merit when he has given no explanation at all of his delay in coming to this Court. It would not be in the interests of the administration of justice to grant that extension, so his application is refused.

Associate:

Dated:    2 August 2023