Federal Court of Australia

ARN21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1038

ORDERS

THE COURT ORDERS THAT:

1.    The originating application and statement of claim, both dated 18 May 2024, and both filed on 4 June 2024, be treated as an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the third respondent to refuse an extension of time to bring an application for judicial review of a decision of the second respondent to dismiss an application for merits review of a decision of a delegate of the first respondent to refuse the grant of a protection visa.

2.    The application for judicial review be dismissed.

3.    The applicant pay the first respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    These are reasons for orders made dismissing an application for judicial review of a decision of a judge of Div 2 of the Federal Circuit and Family Court of Australia. The orders were made at the conclusion of the hearing of the application upon the basis that it could not possibly succeed, no attempt having been made to identify any error at all on the part of the primary judge, let alone jurisdictional error, and no such error being apparent.

2    The applicant is a litigant in person from Malaysia, and an unsuccessful applicant for a protection visa. His application for a protection visa was refused by a delegate of the Minister (the first respondent) in 2017. He applied for merits review by the Administrative Appeals Tribunal (the second respondent). Despite having been sent a notice of a hearing at the email address he provided and a text message reminder at the mobile number he provided in his merits review application to the Tribunal, the applicant did not turn up at the scheduled hearing. The Tribunal dismissed the application before it by reason of non-attendance. The applicant was notified of that decision but did not apply for reinstatement of his application within 14 days (or apparently at all), resulting in the dismissal being confirmed in April 2018, as required by s 426A(1E) of the Migration Act 1958 (Cth).

3    Almost three years later, in March 2021, the applicant applied to what was then the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia, for an extension of time in which to bring an application for judicial review. That interlocutory application, made under s 477(2) of the Migration Act was heard by the primary judge on 22 September 2023 and dismissed on 1 November 2023 with detailed reasons being provided.

4    There is no right of appeal from a decision to refuse an extension of time under s 477(2): see s 476A(3)(a) of the Migration Act; see also MZZTY v Minister for Immigration and Border Protection [2013] FCA 1289 at [11]–[12] (Tracey J). However, this Court does have jurisdiction to review the primary judge’s decision under s 39B of the Judiciary Act 1903 (Cth), limited to jurisdictional error in refusing the extension of time: Tang v Minister for Migration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [11] (Rares, Perram and Wigney JJ).

5    By an originating application and statement of claim, both dated 18 May 2024, and both filed on 4 June 2024, the applicant in substance seeks judicial review of the primary judge’s decision to refuse an extension of time. The primary judge is the third respondent.

6    At a case management hearing, I indicated to the applicant and the solicitor for the Minister that I proposed to treat the originating application and statement of claim as an application for judicial review of the primary judge’s decision to refuse the extension of time, under s 39B of the Judiciary Act. The applicant agreed to that course, and the Minister, as the only active respondent, has not objected to that course. However, the Minister submitted that no recognisable jurisdictional error by the primary judge has been identified by the applicant and the application should be dismissed.

Factual background

7    The applicant arrived in Australia on 31 July 2016 as the holder of an Electronic Travel Authority UD-601 visa. That visa ceased on 1 November 2011, and the applicant was granted a bridging visa on 7 November 2016 after applying for a class XA-866 protection visa. In February 2017, a delegate of the Minister refused to grant that visa.

8    On 8 March 2017, the applicant applied to the Tribunal for a review of the delegate’s decision. In that application, the applicant provided his email address and mobile telephone number under both the “details of person applying for review” and “correspondence details” of the application form.

9    On 2 February 2018, the Tribunal invited the applicant to attend a hearing for review of the decision to refuse the grant of his protection visa, by writing to the email address which he had supplied in the application form. The hearing was scheduled to take place on 15 March 2018 in person. The details regarding the date, time and location of that hearing were included in that invitation, as well as that a Malay interpreter would be present. The invitation requested that the applicant return an enclosed form within 7 days of receipt of the invitation to confirm his attendance at the hearing, and requested that the applicant inform them as soon as possible if he would be unable to attend the hearing. The invitation stated that, if the applicant did not attend the hearing, the Tribunal may make a decision on the review without further action being taken to allow him to appear before the Tribunal, and may dismiss the application.

10    On 14 March 2018, the Tribunal sent a reminder of the Tribunal hearing via SMS to the mobile phone number provided by the applicant in his application for review.

11    On 15 March 2018, the applicant failed to appear at the hearing. On the same date the Tribunal notified the applicant of its decision to dismiss the application pursuant to s 426A(1A)(b) of the Migration Act (non-appearance decision). The notification was sent to the email address that the applicant provided in his merits review application.

12    The Tribunal noted in the non-appearance decision that the applicant had been invited to attend the hearing and that an SMS hearing reminder was sent one business day before the scheduled hearing. The Tribunal noted that the applicant did not appear, and that it was satisfied that the applicant was properly invited to a hearing and that no reason for the non-appearance had been given. The Tribunal therefore decided to dismiss the application without further consideration of the application or the information before it.

13    On 9 April 2018, the Tribunal emailed the applicant again, notifying the applicant of its decision made on 5 April 2018 to confirm the decision to dismiss the application for review (confirmation decision). In its confirmation decision, the Tribunal found that, as the applicant did not apply for reinstatement of the application within 14 days of receiving the non-appearance decision notification, the Tribunal was required to confirm the decision to dismiss the application, and did so.

Judicial review proceeding

14    On 17 March 2021, the applicant filed an application for an extension of time to seek judicial review in the (then) Federal Circuit Court of Australia of the confirmation decision under s 477(2) of the Migration Act. That was an interlocutory application. That application was heard on 22 September 2023, with the applicant appearing as a litigant in person. On 1 November 2023, the primary judge delivered a written judgment, and made orders dismissing the application for an extension of time. It is that decision that is the subject of this proceeding.

Application to the Federal Court

15    As noted at the beginning of these reasons, on 4 June 2024, the applicant filed an originating application, statement of claim and affidavit in the Federal Court, each dated 18 May 2024.

16    In the originating application, the applicant stated (verbatim):

1.    My visa application was refused by AAT.

2.    I applied for judicial review at the Federal Circuit and Family Court and it was refused as well.

3.    I am now applying to the Federal Court pleading for my case to be reviewed again.

4.    My life is in danger back home in my country and I am not able to go back.

5.    Please review my claim which was not taken seriously before by AAT.

17    In the affidavit affirmed by the applicant, he stated:

I want my case to be reviewed again by the Federal Court as I am not satisfied with the decision made by the AAT and Federal Circuit and Family Court of Australia.

I am not able to go back to my country as my life is in danger thus, I am pleading for my case to be reviewed again carefully.

18    In the statement of claim, the applicant stated (verbatim):

1.    I am applying for judicial review of the decision of the federal Circuit and Family Court dated 01 November 2023.

2.    The assessment was unfair because the Tribunal failed to consider things that they must as a matter of law to carry out the decision.

3.    The Tribunal failed to understand my circumstances in my country and that I am not able to return to my country.

4.    I am applying to the Federal Court for my claims to be reviewed again.

19    As already noted, I am treating this originating application and statement of claim in the most beneficial way possible to the applicant, as an application for judicial review of the primary judge’s decision under s 39B of the Judiciary Act. The Minister furnished detailed submissions upon that basis. The applicant did not provide any written submissions. At the hearing of this application, the applicant, after referring to the process he had undergone before the Tribunal and primary judge, and referring to the basis for his protection visa application, ultimately said that he had no submissions to make in relation to any error on the part of the primary judge.

20    The Minister’s only oral submission was regarding the Tribunal’s second decision made on 9 January 2024, a copy of which was attached to the applicant’s affidavit. That decision was to dismiss a further application by the applicant for merits review of the original delegate’s decision for lack of jurisdiction. The Tribunal dismissed that application for review on the basis that the delegate’s decision had already been the subject of a valid merits review application, such that the Tribunal did not have jurisdiction to entertain a second application.

21    The Minister correctly submitted that any review sought of that second Tribunal decision in this Court is not something that falls within the jurisdiction of this Court by reason of the operation of s 476(1) of the Migration Act. Accordingly, I was not willing to, and did not, treat the present originating application and statement of claim as making any application in relation to the second Tribunal decision, for which this Court did not have jurisdiction.

Consideration

22    Unlike judicial review of administrative decisions, unless the primary judge misconceived the nature of the function or the extent of her powers in reaching her Honour’s decision there can be no jurisdictional error in making the decision not to grant the sought extension of time: SZTSU v Federal Circuit of Australia [2015] FCA 224 at [11] (Mortimer J).

23    The Minister submitted that the application does not establish jurisdictional error on the part of the primary judge. I accept that submission. The applicant has not identified any errors in the decision of the primary judge, but has rather requested that this Court exercise judicial review of the decision of the primary judge, stating that that decision was unfair on the basis that the Tribunal “failed to consider things that they must as a matter of law to carry out that decision”. The nature of the complaint is really with the Tribunal’s decision, and not that of the primary judge, and appears to be seeking, in substance, merits review of the Tribunal’s decision.

24    In this case, the primary judge had before her an application made under s 477(2) of the Migration Act seeking an extension of time in which to seek judicial review of the Tribunal decision. Her Honour was required “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [40] (Jagot and Halley JJ); see also Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

25    As explained by Logan J in BTI15 at [25]–[26], while the matters to which regard may be had are not expressly confined by the Migration Act, matters that may be relevant include the following:

(a)    the extent of the delay and any explanation given;

(b)    any prejudice;

(c)    the impact on the applicant if the time is not extended;

(d)    the interests of the public at large; and

(e)    the merits of the substantive application.

26    It is for the judge hearing the application for an extension of time to determine which factors may be relevant in reaching a decision regarding whether that extension is necessary to be granted in the interests of the administration of justice: Katoa at [40] (Gordon, Edelman, and Steward JJ).

Extent of the delay

27    The Tribunal’s confirmation decision was made on 5 April 2018, and the application for judicial review was filed on 17 March 2021, which was just over 2 years and 10 months after the expiry of the statutory timeframe on 10 May 2018. The primary judge correctly found that, on any view, this was an inordinate delay: [12].

Explanation for the delay

28    The applicant's explanation for the delay is that he did not know about the process after his review to the Tribunal, and that he was only able to file the application when his friend advised him how to file his case with the (then) Federal Circuit Court. At the hearing before the primary judge, the applicant further claimed that his phone had been broken and that he had approached a friend regarding next steps. He referred to the coronavirus pandemic and he stated that he did not know how to defend himself. Ignorance of time limits, without any further justification is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; 135 ALD 17 at [38] (Foster J). As the Minister correctly submitted, it was open to the primary judge to find, at [15], that the applicant's explanation did not satisfactorily explain the lengthy delay.

Prejudice, impact on the applicant and interests of the public at large

29    The Minister identifies no relevant prejudice to himself other than the significant public interest in the finality of judicial decisions, citing Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; 177 ALR 491 at 495–496; at [15]–[17] (McHugh J). However, the Minister submits, and I accept, the mere absence of prejudice to a respondent cannot justify the exercise of the discretion sought by the applicant: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 at [18]–[23] (Wilcox J). I accept the Minister’s submission that it was open to the primary judge to make the findings her Honour did in relation to these considerations at [17]–[18].

Notification of the Tribunal hearing

30    The Minister submitted, and I accept, that the applicant was correctly notified of the hearing in accordance with s 425A of the Migration Act, and the primary judge correctly so found. That is because the letter inviting the applicant to attend a Tribunal hearing:

(a)    gave the applicant notice of the time, date and place on which he was required to appear as required by s 425A(1) of the Migration Act;

(b)    provided that notice of the hearing by a method specified in s 441A of the Migration Act, namely by email to the email address that the applicant had provided in his application for merits review to the Tribunal (form eR1 – application for review to the Migration and Refugee division lodged on 8 March 2017), as required by s 441A(5)(b) of the Migration Act;

(c)    gave the applicant at least 14 days’ notice of the hearing as prescribed by reg 4.21(4)(a) and (4)(b)(i) of the Migration Regulations 1994 (Cth), as required by s 425A(3) of the Migration Act; and

(d)    enclosed with that notice an “Information about hearings – MR Division” brochure, which contained a statement to the effect of s 426A of the Migration Act as required by s 425A(4) of the Migration Act.

31    The Minister submitted, and I accept, that having complied with the statutory requirements for notice, the Tribunal was entitled to dismiss the application under s 426A(1A)(b) of the Migration Act without any further consideration of the application or information before the Tribunal. The primary judge was correct to proceed upon that basis.

Reasonable exercise of discretion to dismiss

32    The Minister submitted that it was open for the primary judge to find, for the reasons set out at [20]–[34] of the judgment, that there was no arguable basis for finding that any relevant error attended the Tribunal’s non-appearance and confirmation decisions: see [29] and [32]. There is no reason to doubt the correctness of that submission. No such error on the part of her Honour is apparent.

33    The primary judge also considered the applicant’s grounds for seeking an extension of time and her Honour’s findings on those grounds are not attended by any apparent error.

34    The Minister submitted that the primary judge did not misconceive the nature of her Honour’s function, nor the extent of her Honour’s powers in dealing with the application before her, and that her Honour did not err in finding that the application lacked sufficient merit to warrant the grant of an extension of time. I agree that this is the correct conclusion to draw.

Conclusion

35    As no error at all, let alone any jurisdictional error, on the part of the primary judge has been established, the application before this Court must be dismissed with costs.

Associate:

Dated:    6 September 2024