BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2. The application for an extension of time is refused.
3. The applicants pay the first respondent's costs of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BEACH J: 1 The applicants have applied for an extension of time within which to appeal from a judgment of the Federal Circuit Court on 11 April 2019 under which the primary judge dismissed the applicants' application for judicial review of a decision of the Tribunal which had affirmed a decision of a delegate of the Minister to refuse to grant to the applicants Protection (Class XA) visas. 2 A notice of appeal was required to be filed and served within 21 days of that judgment but the applicants are 19 days out of time. 3 For the reasons that follow I would refuse the extension sought. 4 In 2011, the applicants being citizens of Malaysia arrived in Australia as holders of Visitor (Subclass 976) visas. In early September 2014, the first applicant applied for a protection visa. The second applicant was included in the protection visa application as a member of her family unit. The first applicant claimed to fear harm in Malaysia from members of a political party who she said had sexually assaulted her. 5 On 4 December 2014, the delegate refused to grant the protection visas. 6 On 12 January 2015, the applicants applied to the Tribunal for a review of the delegate's decision. The applicants provided an email address and a post office box address to the Tribunal for the purpose of receiving correspondence. The applicants did not specify a contact phone number in the application for review. 7 On 20 May 2016, the Tribunal sent a letter via email to the applicants inviting them to attend a hearing on 24 June 2016. The applicants failed to appear at that scheduled hearing. There is no evidence that that email of 20 May 2016 was not properly transmitted, unlike later emails. 8 On 27 June 2016, the Tribunal dismissed the application for review under s 426A(1A)(b) of the Migration Act 1958 (Cth) as it was entitled to do. The Tribunal found that the applicants had been invited under s 425 to appear before it on 24 June 2016, but did not appear. The Tribunal found that the applicants had not provided a satisfactory reason for their non-appearance. Accordingly, it decided to dismiss the application without any further consideration of the application or the information before it. 9 On 27 June 2016, the Tribunal emailed a copy of the dismissal decision to the applicants at the email address provided in their application for review. At the time the Tribunal also informed the applicants that they could apply for a reinstatement of the application by 11 July 2016. Apparently, the email failed to send due to a failure in transmission. Accordingly, on 28 June 2016 the Tribunal sent a copy of the dismissal decision and the notification of the reinstatement procedure to the applicants' nominated postal address. There was nothing before the Tribunal to indicate that such a method of delivery had not been effectual. The applicants did not respond to this correspondence or apply for reinstatement. 10 On 12 July 2016, the Tribunal confirmed the decision to dismiss the application for review. The Tribunal noted that it had dismissed the application under s 426A(1A)(b) on 27 June 2016, as the applicants had not appeared before it to give evidence and present arguments. The Tribunal found that the applicants had been notified of the dismissal decision and had been provided with a copy of a written statement setting out the decision and the reasons for the decision in accordance with s 426B(5). The Tribunal noted that notification of the dismissal decision was sent to the applicants' email address, the email delivery failed and whilst it was satisfied that the applicants had been correctly notified, it had decided to also send the dismissal decision to the applicants' nominated postal address. The Tribunal found that the applicants were advised that reinstatement of the application could be sought within 14 days of the dismissal and that a failure to apply for reinstatement within that period would result in confirmation of the dismissal decision. As the applicants did not apply for reinstatement within the 14 day period, the Tribunal found that it must confirm the dismissal decision. Accordingly, the decision under review was taken to be affirmed. On the same day, the Tribunal sent a copy of the confirmation decision to the applicants by email. But again, delivery of this email failed. Accordingly, a copy of the confirmation decision was also sent to the applicants at their nominated postal address. Again, there is no evidence to suggest that this latter mode of delivery was ineffectual. 11 On 22 July 2016, the applicants lodged an application for judicial review in the Federal Circuit Court seeking to challenge the Tribunal's 27 June 2016 decision to dismiss the application for review. For present purposes that can also be taken to encompass the confirmation decision made on 12 July 2016. 12 The grounds of the application were as follows: 1. The Second Respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal. On account of the mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty. By consequences Tribunal decision is not a decision at all in law. 2. My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A. 13 The primary judge found that the Tribunal had properly invited the applicants to attend a hearing and that the applicants had received notification of the hearing, noting that there was no evidence that the hearing invitation was not sent or received. The primary judge noted that the Tribunal had sent both the dismissal decision and confirmation decision to the applicants' email address and that they were taken to have received those documents at the end of the day on which they were transmitted. The primary judge found that the Tribunal had appropriately taken the additional step of posting both documents to the applicants when it appeared that the emails had not been transmitted. The primary judge found that there was no other step the Tribunal could have taken given the failure of the applicants to provide a telephone number. The primary judge found that this was not a case where the Tribunal was required to take any other extra steps to contact the applicants by other means. The primary judge found that by posting the dismissal and confirmation decisions, the applicants were taken to have received these documents seven working days after the date of the documents, and that on that basis the applicants had received both documents. 14 The primary judge found that contrary to any suggestion from the applicants, the Tribunal was not required to put any information about their own non-attendance to them for comment pursuant to s 424A(1) as it did not constitute information for the purposes of that section. The primary judge found that any allegation that the Tribunal acted unreasonably in dismissing the application for review due to the applicants' non-appearance could not succeed. 15 With respect to the applicants' complaint regarding the mistake of a third party, the primary judge found that the applicants had not put any evidence of this to him, the third party was not identified, the nature of the mistake was not identified and the particulars of the mistake were not identified. Accordingly, the primary judge rejected this excuse. 16 With respect to the applicants' oral submission before the primary judge that they had attempted to alter their email address with the department, the primary judge found that no particulars were provided in this regard. The primary judge therefore found that this did not occur, but in any event said that this did not address the fact that any change of address details would have needed to have been provided to the Tribunal and was not. Accordingly, alerting the department of the change of details did not take the applicants far. 17 In summary, the primary judge held that the applicants had not demonstrated any jurisdictional error on behalf of the Tribunal and dismissed the application for judicial review. An extension of time to appeal from that decision is now before me. 18 The principles relevant to the exercise of discretion whether to grant an extension of time within which to appeal are not in doubt. First, the length of the delay is a relevant factor. Second, the applicants must provide an acceptable explanation for the delay, and justify why it is fair and reasonable in the circumstances to extend time. Third, any prejudice to the Minister may militate against the grant of an extension, although on the flipside the absence of prejudice does not, without more, suffice to justify the grant of an extension. Fourth, the merits of the substantive appeal, if an extension were to be granted, are of central significance. If there are no reasonable prospects of success, then in the usual case an extension of time ought to be refused as an exercise in futility. 19 I am satisfied that the extension of time sought is short and has been adequately explained. Further, no prejudice would be caused to the Minister by the extension. But in my view this is a case where it is not appropriate to grant an extension of time as the proposed appeal would have no reasonable prospects of success. 20 The grounds set out in the draft notice of appeal are expressed in the following form: 1. The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The learned Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT. 21 Proposed ground one contends that the primary judge failed to consider that the Tribunal acted unreasonably when dealing with the applicants' claim and ignoring the aspect of persecution and harm asserted by the applicants and that the Tribunal failed to observe its statutory obligations, which were unidentified. But this ground misconceives the basis of the Tribunal's decision. In circumstances where the applicants failed to appear at the hearing before the Tribunal and failed to apply for reinstatement of the application, the Tribunal was not obliged to consider on the merits any claims within the visa application and was entitled to dismiss the application under s 426A(1A)(b) without any further consideration of the application or information before it. 22 Relatedly, proposed ground two, which is not particularised, contends that the primary judge dismissed the case without considering the legal and factual errors contained in the Tribunal's decision. But the primary judge was correct to find that the applicants had been properly invited to the hearing, that the applicants had received at least by post both the dismissal decision and the confirmation decision, that no information was required to be put to the applicants under s 424A, and that the Tribunal did not act unreasonably in proceeding to dismiss the application. 23 In my view the proposed grounds of appeal have no reasonable prospects of success. Let me turn to what I consider to be the real issues relating to notice and service. 24 In my view, the Tribunal appropriately acted under s426A(1A)(b) by dismissing the application without any further consideration as it was entitled to do. The applicants had been invited to appear but failed to appear. 25 Further, as for the notice to the applicants under s 426B, that notice was required by s 426B(5) to be given "by one of the methods specified in section 441A". It is appropriate to identify aspects of s 441A relevant to the present context. 26 Relevantly, s 441A(4) provided: Dispatch by prepaid post or by other prepaid means (4) Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by the recipient in connection with the review; or (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or (iii) if the recipient is a minor - the last address for a carer of the minor that is known by the member or officer. 27 Further, s 441A(5) provided: Transmission by fax, email or other electronic means (5) Another method consists of a member or an officer of the Tribunal transmitting the document by: (a) fax; or (b) email; or (c) other electronic means; to: (d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or (e) if the recipient is a minor - the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer. 28 Further, ss 441C(4) and (5) provided: Dispatch by prepaid post or by other prepaid means (4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or (b) in any other case - 21 days after the date of the document. Transmission by fax, email or other electronic means (5) If the Tribunal gives a document to a person by the method in subsection 441A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted. 29 Let me deal with a number of questions. 30 First, the first applicant on behalf of both applicants said to me that they had not received the invitation to appear before the Tribunal. Now as I pointed out to her, in the application for judicial review below the applicants had said that this was the fault of a "third party" but not the Tribunal. No evidence was adduced before me or the primary judge on this question. In any event the invitation was properly notified by the Tribunal. Any fault of a third party does not deny that conclusion. Accordingly, the Tribunal was quite entitled to act under s 426A(1A)(b) in making the dismissal decision. 31 Second, as to the notifications after the dismissal decision, I raised with the first applicant that on any view of the matter there had been valid delivery of relevant notices to the postal address. The first applicant did not suggest that the postal address was incorrect. Indeed, it seems that the Tribunal's confirmation decision did come to the attention of the applicants via this route such as to cause them shortly after the confirmation decision to make their application for judicial review. 32 Third, the first applicant raised with me, as she had before the primary judge, that she had amended her email address with the department. But even if it be assumed in favour of the applicants that this justifiably explains the failure of transmission of the email notifications sent on 27 June and 12 July 2016, that is no answer to the established correct postal delivery which had occurred. I am of the view that the primary judge was not entitled to rely upon s 441C(5) concerning the email notifications made on 27 June and 12 July 2016 given the failure in transmission. But he was entitled to rely upon s 441C(4) concerning postal delivery. 33 I am prepared to accept, contrary to what the primary judge found, that the email mode of delivery on 27 June and 12 July 2016 was not effectual because transmission failed. But in my view, dispatch by prepaid post was effectual. Accordingly, there is nothing which undermines the validity of the confirmation decision. 34 Further, as I have said, the dismissal decision was valid. The applicants did not appear and the invitation to appear had been properly notified in accordance with the statutory requirements. 35 In summary, the primary judge's decision to dismiss the application for judicial review is not attended by any sufficient doubt. The proposed substantive appeal has no reasonable prospects of success. The application for an extension of time must be refused. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.