Federal Court of Australia

ADH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 429

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for an extension of time dated 31 July 2021 be dismissed.

2.    The Applicant pay the First Respondent’s costs of that application.

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

REASONS FOR JUDGMENT

(Delivered ex tempore; revised from transcript)

WIGNEY J:

1    The applicant in this matter has applied for an extension of time in which to appeal a judgment of the (then) Federal Circuit Court of Australia. That judgment dismissed the applicant’s application for judicial review of a decision of the (then) Administrative Appeals Tribunal: ADH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 624 (J). The decision of the Tribunal which was the subject of the judicial review application in the Circuit Court was a decision the effect of which was that the Tribunal did not have jurisdiction to review the applicant’s application or purported application for the review of a migration decision.

2    For the reasons that follow, the applicant’s application for an extension must be dismissed with costs.

The applicant’s failure to appear at the hearing

3    The applicant did not appear when his application was called for hearing. It is first necessary to consider whether his application should be dismissed due to his non-appearance, or whether the hearing should proceed in his absence, or whether some other order should be made.

4    The first point to note in that context is that there could be little doubt that the applicant was aware, or ought reasonably to have been aware, that his application had been listed for hearing.

5    On 18 August 2021, a Registrar of the Court made various timetabling orders. Those orders included orders requiring the applicant to file written submissions no later than 10 business days before the hearing.

6    On 7 January 2025, the Court’s Registry sent an email to both the applicant, at the email address provided by the applicant in this application, and to the solicitors who act for the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. That email concerned the listing of the application for hearing. The first respondent’s solicitors replied to the email and provided available dates for the hearing. The applicant did not respond to the email.

7    On 28 February 2025, the Court sent another email to the parties, this time advising that the application had been listed for hearing on 22 April 2025 and asking for confirmation that the email had been received. The first respondent’s solicitors confirmed receipt of the email. The applicant did not. There was no indication that the Court’s email had “bounced back” or was not delivered to or received by the applicant.

8    Given the absence of any communication from the applicant, an officer of the Court’s Registry telephoned the applicant on the telephone number listed on the applicant’s application. A note prepared by that Court officer in an email dated 12 March 2025 records that the officer spoke with the applicant and was provided with another email address to which correspondence addressed to the applicant could be sent.

9    On 18 March 2025, the Court sent another email to the parties, this time using the new email address provided by the applicant. That email reiterated and confirmed that the applicant’s application had been listed for hearing on 22 April 2025. The Court received no response to that email from the applicant.

10    As noted earlier, the applicant was ordered to file written submissions no later than 10 business days before the hearing. The applicant did not file any written submissions.

11    As has also already been noted, the applicant did not appear when the application was called for hearing at 10.15 am on 22 April 2025. Court was adjourned for 15 minutes in the unlikely event that the applicant was running late. When the Court resumed at 10.30 am, the matter was called again outside the court room. There was again no appearance by the applicant.

12    I am satisfied that the Court took all reasonable and appropriate steps to notify the applicant of the hearing date. I am satisfied that the applicant was either aware of the hearing date, or ought reasonably to have been aware. There is no apparent justification for his failure to appear.

13    Rule 35.33(1) of the Federal Court Rules 2011 (Cth) provides as follows:

If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:

(a)    if the absent party is the applicant:

(i)    the application be dismissed; or

(ii)    the application be adjourned; or

(iii)    the hearing proceed only if specified steps are taken; or

(b)     if the absent party is the respondent:

(i)    the hearing proceed generally or in relation to a particular aspect of the application; or

(ii)    the hearing be adjourned; or

(iii)    the hearing proceed only if specified steps are taken.

14    While it would plainly be open to dismiss the applicant’s application for an extension of time as a result of his failure to appear, I consider that the more appropriate course in all the circumstances is to proceed with the hearing, albeit in the applicant’s absence, and consider the merits of the application on the basis of the material that has been filed.

The applicant’s review applications in the Tribunal and their withdrawal

15    The relevant facts and procedural history of the matter may be shortly stated.

16    The applicant is a Malaysian citizen. He arrived in Australia in March 2018.

17    On 12 May 2018, the applicant applied for a protection visa pursuant to section 36 of the Migration Act 1958 (Cth). He claimed that he had a well-founded fear that he would be persecuted if he returned to Malaysia on the basis that he was a Chinese Buddhist.

18    The applicant’s visa application was refused by a delegate of the Minister on 25 October 2018. The delegate was not satisfied that the applicant met the criteria for a protection visa.

19    The applicant applied to the Tribunal on 14 November 2018 for a review of the delegate’s decision. That application included details of the applicant’s email address. I will refer to that email address as the applicant’s first email address. That email address was the same email address that the applicant had specified in his protection visa application.

20    On 3 June 2019, the Tribunal received an email from the applicant’s first email address. That email was from, or at least appeared or purported to be from, the applicant. The email attached a form which indicated that the applicant wished to withdraw his review application. That form appeared to be signed by the applicant.

21    On 12 June 2019, the Tribunal sent an email to the applicant’s first email address which attached a letter to the applicant. That letter advised the applicant that the Tribunal had accepted the withdrawal of his application.

22    I should note at this juncture that at the time of these events, section 42A, subsections (1A) and (1B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), as it then was, provided as follows:

42A Discontinuance, dismissal, reinstatement etc. of application

Deemed dismissal – applicant discontinues or withdraws application

(1A)     A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

…

(1B)    If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.

23    Given the terms of section 42A of the AAT Act, when the Tribunal accepted the applicant’s withdrawal of his application on 12 June 2019, the applicant’s application for review of the delegate’s decision had, for all intents and purposes, been dismissed.

24    It should also be noted here that there is provision in section 42A(8) of the AAT Act for an applicant whose review application is taken to have been dismissed by reason of section 42A(1B) to apply to the Tribunal for reinstatement of the application. The applicant did not apply for a reinstatement of his withdrawn application.

25    Continuing with the chronology of relevant events, on 3 July 2019 the applicant filed in the Tribunal what purported to be a new application for review of the delegate’s decision. I will refer to that review application as the applicant’s new or second review application. That application specified a different email address for the applicant. As it happens, that email address is the same email address as the email address provided by the applicant on the documents he has filed in this Court. I will refer to that email address as the applicant’s new email address.

26    On 18 July 2019, the Tribunal received a reply to its email dated 12 June 2019, that being the email that advised the applicant that his withdrawal application had been accepted. The email, which appeared or purported to be from the applicant, stated as follows:

We [the applicant and his son] had received a letter of acceptable about withdrawal of application for review on 12 June 2019.

Recently an agency informed us that they had submitted the AAT on our behalf and request for payment, but we did not ask anyone to submit AAT about our application because we would like to cancel our application, and we will move to another country.

Please assist in cancel the review of our application.

27    I should, perhaps note at this stage that the applicant, who was the principal applicant for a visa, had also corresponded on behalf of his son who was his dependent in relation to his visa application.

28    Whilst somewhat confusing, the email which was sent on 18 July 2019 appeared to indicate that the applicant was not responsible for filing the new or second review application, and that he wanted the Tribunal to cancel it. It is worth noting that the email did not take issue with the fact that the applicant’s review application had been accepted by the Tribunal to have been withdrawn. There is nothing to suggest that this email was not in fact authored and sent by the applicant.

29    On 1 October 2019, the Tribunal wrote to the applicant at his new email address and advised him that it considered his new review application was not valid because he had previously applied for a review of the delegate’s decision, and that review application had been withdrawn and dismissed. The Tribunal invited the applicant to provide any comments he wished to make in response to that information. The Tribunal did not receive any response to that invitation from the applicant.

30    On 1 November 2019, however, the Tribunal received an email which appeared or purported to be from the applicant. That email attached a form, apparently signed by the applicant, which requested or applied for the withdrawal of the new or second review application. The form specified the first email address as being the applicant’s email address.

31    On 5 December 2019, the Tribunal decided that it did not have jurisdiction in respect of the new or second review application because a review of the delegate’s decision had already “been made and finalised”. That was an apparent reference to the withdrawal and dismissal of the first review application.

32    It was that decision which was the subject of the applicant’s application for judicial review in the Circuit Court.

Judicial Review in the Circuit Court

33    The applicant was not legally represented in the Circuit Court. He relied upon a single ground of review, the effect of which was that there had been a “procedural error” because he did not lodge the document which sought the withdrawal of his application. The applicant claimed that the withdrawal request or application was not sent from his email address, and that the Tribunal should therefore not have accepted it.

34    The applicant did not file any affidavit evidence in support of his judicial review application. Nor did he file any written submissions. In his oral submissions in the Circuit Court, the applicant appears to have contended that his employer was responsible for lodging the withdrawal request, and that he was the victim of fraud by his employer. The applicant did, however, acknowledge that the signature on the withdrawal form was his. The only “evidence” that the applicant was able to point to in support of his claim of fraud was the fact that the address listed in his withdrawal application was an address in Victoria, when at the time he was residing at an address in Lidcombe in New South Wales.

35    The primary judge rejected the applicant’s claim that he was the victim of fraud and found that the applicant’s first review application in the Tribunal had been validly withdrawn by the applicant: J[28]. His Honour acknowledged the possibility of third-party fraud, but held that there was insufficient evidence that any such fraud had in fact taken place: J[29].

36    The primary judge was satisfied in those circumstances that the valid withdrawal of the applicant’s review application in the Tribunal had finalised his right of review by the Tribunal. It followed that the Tribunal was correct when it determined that it did not have jurisdiction to entertain the applicant’s new or second review application: J[29]-[30]. The applicant’s judicial review application was, accordingly, dismissed with costs.

The application for extension of time and grounds of appeal

37    The applicant’s affidavit in support of his application for an extension of time simply repeated his bald assertion that his review application was withdrawn by someone without his notice or consent on 3 June 2019. As for why he had not filed his appeal within time, the applicant merely asserted that he could not afford to pay the application fee at the time.

38    It is well-established that, to secure an extension of time within which to appeal a judgment, an applicant must generally provide a reasonable explanation for not having filed the appeal within time and establish that they have a reasonably arguable case that the primary judge erred.

39    The problem for the applicant is that he has failed to satisfy either of those requirements.

40    As for his explanation for not having filed his appeal within time, an inability to pay the filing fee is generally an inadequate explanation for delay in filing a notice of appeal: SZUMJ v Minister for Immigration and Border Protection [2017] FCA 1380 at [16] and DWK17 v Minister for Home Affairs [2019] FCA 66 at [12]. That is particularly so where, as in the applicant’s case, his claim that he could not afford the filing fee is no more than a bare assertion, and there is no evidence concerning his financial circumstances, no evidence concerning the steps, if any, that he took to attempt to raise the filing fee, and no evidence that he took any steps to secure a waiver of his filing fee, or even attempted to contact the Court’s Registry about his supposed inability to pay the fee.

41    In my view, the applicant’s failure to provide any reasonable or acceptable explanation for his failure to file his appeal within time would itself provide a sound basis for dismissing his application for an extension of time. In any event, it is readily apparent from the material that is currently before the Court that the applicant’s proposed appeal is entirely without merit.

42    The applicant’s draft notice of appeal contains three grounds of appeal. None of those grounds could be said to be reasonably arguable.

43    The first proposed ground is that “[t]he judge did not fully consider the material in front of him”. There is no basis for that assertion. The particulars in respect of this ground in the draft notice of appeal appear to focus on the withdrawal of the applicant’s second or new review application. The focus of the withdrawal of that application is entirely misconceived. The critical issue is whether the first review application was validly withdrawn. The primary judge was not satisfied that the applicant had established that his first review application was withdrawn by someone else without his knowledge or consent. I am unable to see any basis for disturbing that finding. The applicant’s claim in that regard was no more than a bare assertion and was unsupported by any, or any cogent, evidence. In my view, it was plainly open to the primary judge to reject the applicant’s assertion in that regard.

44    Indeed, in my view, the documentary evidence that is before the Court tends to indicate that the applicant was most likely responsible for the withdrawal of his application. The withdrawal of the first review application was sent to the Tribunal from the applicant’s nominated email address. The applicant also acknowledged before the primary judge that the signature that appeared on the withdrawal form was his signature. The applicant replied to the Tribunal’s email that advised of the acceptance of the withdrawal application. The applicant, in that email, did not take issue with the fact that his review application had been validly withdrawn. In the absence of any other evidence, the mere fact that the withdrawal form apparently signed by the applicant included an address in Victoria as the applicant’s address is of little, if any, moment.

45    An allegation of third-party fraud in the context of a visa application or review proceedings is a serious allegation that generally requires cogent evidence: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [48]-[51]. Where an allegation of fraudulent conduct relies on inferences to be drawn from documentary evidence, the allegation will not be made out unless the inference of fraud is the most probable inference: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [30]. An inference of fraud was clearly not the most probable inference in the circumstances of this case.

46    The second proposed ground of appeal is that “[s]ome findings were not fair”. That is not a proper ground of appeal. In any event, the particulars of that ground simply state as follows:

The applicant acknowledged his signature appeared on the withdrawal form. It does not mean his signature was signed by himself. Applicant’s signature may be faked based on the facts.

47    The fundamental problem with that claim is that there was no evidence whatsoever before the primary judge which was capable of establishing that the applicant’s signature had been “faked”. Indeed, the applicant did not even claim before the primary judge that his signature had been faked. He simply acknowledged that it was his signature.

48    The third proposed ground of appeal is “[t]he tribunal did not put all relevant information to the applicant when making his decision”. The applicant provided no particulars of that bare assertion. It is misconceived because it focuses on a supposed error by the Tribunal, not an error by the primary judge. There is, in any event, no indication of what relevant information the Tribunal failed to put to the applicant. On 1 October 2019, the Tribunal fairly put the applicant on notice that it might refuse to entertain his second review application because his first review application had been withdrawn. The Tribunal invited the applicant to comment on that information. The applicant failed to respond to that invitation.

49    It follows that I am not satisfied that any of the proposed grounds of appeal have any merit whatsoever.

50    The applicant’s application for an extension of time dated 31 July 2021 must accordingly be dismissed with costs.

Associate:

Dated:    1 May 2025