Federal Court of Australia

BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the respondent’s costs, to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

BURLEY J:

The application

1    The applicant seeks an extension of time for leave to appeal from a decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) (FCFCA) made on 13 October 2023, dismissing an application seeking to set aside orders made on 13 July 2023 whereby a Registrar dismissed the applicant’s judicial review application of an earlier decision of the Registrar to summarily dismiss her application for non-appearance at the hearing; BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 902.

Background events

2    In August 2017, the applicant, a citizen of China, arrived in Australia and applied for a protection visa claiming that she faces a real risk of harm if she were to return to China because she is a “devout underground Christian”. She nominated no representative to act on her behalf and provided an email address that has been used to communicate with the applicant throughout all stages of the proceedings identified below.

3    The applicant was notified by email that a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs wished for her to attend an interview in December 2017. The applicant failed to attend. The following day the delegate refused to grant the visa.

4    On 29 December 2017, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. She was duly informed by email that the Tribunal had listed a hearing for 20 April 2021, but did not attend the hearing. As a consequence, on the same day, the Tribunal notified the applicant by email of its decision to dismiss the application pursuant to s 426(1A)(b) of the Migration Act 1958 (Cth). She was informed that she could apply, in writing, for reinstatement of the application by 4 May 2021. No reinstatement application was made and on 11 May 2021 the Tribunal confirmed its decision to dismiss the application. The Tribunal notified the applicant via email of its decision on the following day.

5    The applicant then sought judicial review of the decision of the Tribunal by the FCFCA. The grounds set out in her application were:

1.    I was not properly invited to hearing submitted the supporting documents in accordance with law, therefore my case didn’t apply to s 426A(1A)(b);

2.    The AAT was unfairfully treated my claims and evidence of the Migratant Act 1958 with Wendesbury unreasonableness.

(As written)

6    The Minister sought summary dismissal of the judicial review application on the basis that it had no reasonable prospects of success.

7    On 13 June 2023, when the applicant failed to attend the summary dismissal hearing listed before a Registrar of the FCFCA, the judicial review application was dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCA Rules).

8    On 3 July 2023 the applicant filed an application to set aside the orders of 13 June 2023 together with an accompanying affidavit. That application was heard on 27 July 2023 by a Registrar of the FCFCA, who dismissed it and published written reasons which set out the circumstances of the applicant’s non-appearance on 13 June 2023; see BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs (MLG 1065 of 2021, decision of Registrar delivered on 27 July 2023).

9    The Registrar explains in their written reasons that on 13 June 2023, when the summary dismissal application was listed for hearing, the applicant initially attended via Microsoft Teams prior to the commencement of the hearing but did not turn on her microphone or camera. The Court Officer attempted to explain (via an interpreter) how to do so, but the applicant remained with her microphone and camera off. The Court Officer then made three telephone calls to the applicant. She answered the first but hung up when the Court Officer introduced herself. She answered the second call but hung up again. The third went to voicemail. The applicant then left the Microsoft Teams link. The Minister applied for the judicial review application to be dismissed for non-appearance. The Registrar allowed that application.

10    In considering the application to set aside the orders of 13 June 2023, the Registrar noted that the applicant appeared at the hearing on 27 July 2023 and gave an explanation for her conduct on the Microsoft Teams link on 13 June 2023. The Registrar then considered the application on its merits, determining that it should nonetheless be dismissed because the judicial review application had no reasonable prospect of success.

11    The Registrar’s decision to dismiss the proceeding was an exercise of delegated power. Judicial power of the Commonwealth may only be exercised by judges of federal courts exercising federal jurisdiction. However, federal judicial power may be delegated to registrars if the power exercised by them is subject to review or appeal by a judge or judges of the court; Harris v Caladine [1991] HCA 9; 172 CLR 84 at 94–95 (Mason CJ and Deane J), 123, 126 (Dawson J), 150–151 (Gaudron J) and 164 (McHugh J). The opportunity for a review by way of hearing de novo is sufficient to satisfy this requirement; Harris at 95, 123, 164. The Full Court in Bechara v Bates [2021] FCAFC 34; 286 FCR 166 at [2]–[4] (Allsop CJ, Markovic, Colvin JJ) considered the nature of the power exercised by a registrar and the review process that follows, observing that judicial power may be exercised by an order made pursuant to a delegation, but only if the order may be reversed or corrected by a judge on review; and the review, or de novo appeal, is not concerned with correcting error or part of a tiered process but as a fresh hearing which may result in a different order having the effect of undoing or revoking the decision of the registrar.

12    On 4 September 2023, the applicant filed an application for de novo review by a judge of the FCFCA of the decision of the Registrar made on 27 July 2023. By r 21.02(1) of the FCFCA Rules, such application ought to have been made within 7 days of the dismissal of the application to set aside the orders of 13 June 2023. It was accordingly filed some 32 days out of time.

Decision of the primary judge

13    On 14 September 2023, a judge of the FCFCA heard the application for review. The applicant attended and represented herself. The Minister was represented by their solicitor.

14    The primary judge considered the two grounds advanced by the applicant’s application for judicial review of the Tribunal’s decision (set out above) as a hearing de novo, thereby not considering the correctness of the decision of the Registrar to dismiss the application to set aside the orders of 13 June 2023 but considering the application for an extension of time within which to seek a review of the dismissal order afresh. That was the appropriate course to take.

15    In considering whether to exercise his discretion as to any extension of time, the primary judge noted that discretion must be exercised in the interests of justice. The primary judge accepted the Minister’s submission that the common considerations which inform the discretion to extend time under s 477 of the Migration Act may be relevant to this exercise of discretion and that those considerations include length of the delay, explanation for the delay, any relevant prejudice to the Minister and the merits of the proposed substantive application, citing Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604 at [12].

16    In relation to the de novo review, the primary judge went on to note that the Court has a discretion to set aside an earlier order made in the absence of a party under r 17.05(2)(a) of the FCFCA Rules, that the applicant had sought review of the Registrar’s order of 27 July 2023 refusing to set aside the earlier order on 13 June 2023 and that he was to conduct the review de novo on the basis that he is in the position of the Registrar before making the order on 27 July 2023. In deciding whether to set aside an earlier order, the primary judge relied on MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (Ryan J) at [7]:

In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable.  That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement.  Those factors are:

(a)    whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out; 

(b)    the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; 

(c)    whether the applicant has a reasonably arguable prospect of success on the substantive application.  As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement.

(Emphasis in original)

17    The primary judge first considered the length, explanation and prejudice of the delay occasioned by filing the judicial review application 32 days out of time. He found that the applicant’s review application and accompanying affidavit of 4 September 2023 did not provide any explanation as to why the review application was filed out of time, but that the Minister did not claim any specific prejudice occasioned by the delay.

18    Turning to the applicant’s prospects of success, the primary judge noted that the first ground was that the applicant contended that she was not “properly invited to [the Tribunal] hearing”. This ground, he rejected, because the evidence indicated that the Tribunal notified the applicant of the hearing at the email address she had supplied and that by ss 441A(5)(b) and 441C(5) of the Migration Act she was “taken to have received the document by the end of the day on which the document is transmitted”. The email notification sent to the applicant also contained a statement that satisfied the requirements of s 426A of the Migration Act (being to the effect that a decision may be made in her absence if she did not appear at the hearing). Upon her failure to attend the hearing, the Tribunal notified the applicant of its decision to dismiss the application and by subsequent email complied with its obligation to notify the applicant that she had 14 days within which to apply to the Tribunal for reinstatement of her application. The primary judge noted that once the applicant failed to apply for reinstatement within the 14-day period, by operation of s 426A(1E) of the Migration Act the Tribunal had no option other than to confirm the decision to dismiss the application.

19    The primary judge noted that before him, the applicant claimed that she had not received the emails inviting her to appear at the hearing before the Tribunal or notifying her of the decision to dismiss the application. However, having regard to the deemed receipt provision under s 441A of the Migration Act, the primary judge rejected that argument as untenable, citing SZNZL v Minister for Immigration and Citizenship [2010] FCA 621; 186 FCR 271; at [36].

20    In relation to the second ground, the primary judge noted that the claim was that the applicant’s claims and evidence were treated unfairly and with “Wednesbury unreasonableness” which the primary judge took to be a reference to Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. The primary judge considered that the Tribunal had a discretion under s 426A(1A)(b) as to whether to dismiss the application which was to be exercised, like any other statutory discretion, as conditioned by a requirement that it be exercised in a legally reasonable way, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [23] – [26] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88]-[92] (Gageler J).

21    The primary judge considered that the preconditions to the exercise of power had been met, citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [68], [69] (Gageler J). The decision that the Tribunal made to proceed in accordance with that section was explicable having regard to the fact that it had provided due notification of the hearing and the applicant had failed to attend. The primary judge considered that the section did not require the Tribunal to make any further attempt to contact the applicant, citing SZVFW at [69].

22    The primary judge concluded that he would not extend the time for bringing the judicial review application because the substantive judicial review application has no reasonable prospects of success and accordingly that it is not in the interests of justice to set aside the Registrar’s orders made on 13 June 2023. The application was dismissed with costs.

The application before the Federal Court

23    The applicant has filed an application for an extension of time and leave to appeal from the decision of the primary judge. An extension of time is required because, pursuant to r 35.13 of the Federal Court of Australia Rules 2011 (Cth), an application for leave to appeal from a decision of the primary judge must be made within 14 days of the date on which the judgment was pronounced, or the orders were made. The present application was filed some 17 days out of time.

24    The draft grounds of appeal advanced by the applicant are that the Minister, the Tribunal and the FCFCA:

(1)    “did not apply the legal provisions properly to assess my case”; and

(2)    “unfairly treated my claims and evidence with wendesbury unreasonableness”.

25    The applicant filed an affidavit dated 7 November 2023 in support of her application in which she states that she submitted her application within 14 days but because she did not have the money “to find a lawyer, so [she] submitted wrong form” and that this delayed the time for filing.

26    The application was listed for hearing on 29 February 2024. The applicant filed no written submissions in advance of the hearing but attended the hearing by Microsoft Teams and made submissions with the assistance of a Mandarin interpreter. The solicitors representing the Minister filed written submissions in advance of the hearing and also appeared via Microsoft Teams.

27    The question of whether leave to appeal will be granted will be determined on the basis of whether in all of the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice would result if leave were refused, supposing the decision of the primary judge to be wrong; Décor Corporation Pty Ltd v Dart Industries [1991] FCA 844; 33 FCR 397 at 398-399. The grant of an extension of time depends also on the putative merits of the proposed appeal and is overlaid with consideration of the effects of the delay, any explanation for it and the balancing of any prejudice that may arise from the delay with any injustice that may arise from failing to grant leave.

28    The draft grounds of appeal advanced, insofar as they are directed to the conduct of the Minister and the Tribunal are, in the context of the present application, legally incoherent. However, because the applicant is self-represented, I shall assume in her favour that the grounds advanced are addressed to the decision of the primary judge and that they contend that the primary judge failed to apprehend the defect alleged in the decision of the Tribunal.

29    Nonetheless, I consider that neither ground has any reasonable prospect of success.

30    The first provides no basis upon which it may be said that the primary judge failed to assess the application before him. If, assuming in favour of the applicant, it seeks to replicate the first ground considered by the primary judge (that the applicant was not properly invited to the Tribunal hearing), it must also fail for the cogent reasons given by the primary judge, which are supported by the factual matters to which he referred.

31    During the course of argument, the applicant said that she had not received the invitation to attend the hearing at the Tribunal because the solicitor who was representing her at the time had not provided it to her. She said that she “constantly” had a solicitor, although not the same one throughout the history of the matter. The applicant was unable to explain the discrepancy between this submission and the content of her affidavit in which she deposed to the fact that she did not have money to find a lawyer. Instead, when asked about this, she denied any knowledge of the affidavit in support of her present application. However, it is not necessary for present purposes to address this apparently new evidence and to resolve the conflict to which I have referred. In her visa application, the applicant provided her own email address for the purposes of correspondence, with no representative noted. The invitation to attend the hearing before the Tribunal was sent to that email address pursuant to s 441A(5)(b) of the Migration Act. As the primary judge noted at [34], by sending a document in that manner, a person is taken to have received the document, regardless of whether it was actually received; s 441C(5) of the Migration Act. If the applicant did engage a solicitor, such person was not notified to the Tribunal as a person to whom correspondence should be sent. Having not done so, it could not, in any event, derogate from the deemed receipt to which the primary judge correctly referred.

32    The second ground repeats the unreasonableness ground advanced before the primary judge. I detect no error in the reasoning of the primary judge in this regard.

33    My conclusion that the proposed appeal has no reasonable prospects of success obviates the need to consider the other discretionary factors identified in Décor Corporation.

DISPOSITION

34    For the reasons set out above, I refuse to grant the extension of time on the basis that it is not in the interests of justice to allow an application with no reasonable prospects of success to continue.

35    The application for an extension of time and leave to appeal must be dismissed with costs, to be taxed if not agreed.

Associate:

Dated:    28 March 2024