CMJ23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 443

1. By an application filed in this Court on 23 October 2023, the applicant seeks an extension of time in which to make an application for judicial review of a decision of the then Administrative Appeals Tribunal (the "Tribunal") dated 27 July 2023. In that decision, the Tribunal confirmed its earlier decision (made on 19 June 2023) dismissing the applicant's application for review of a decision made by a delegate of the first respondent (the "Minister") on 24 November 2017 refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (the "visa").
2. This proceeding was brought pursuant to s 477(2) of the Migration Act 1958 (Cth) (the "Act"). Unfortunately, the application was filed outside the 35-day time period prescribed under that section of the Act. In the circumstances, the applicant must satisfy the Court that it is necessary in the interests of the administration of justice to make an order extending time for the filing of his application (pursuant to s 477(2) of the Act).
3. For the reasons that follow, the Court concludes that the application for an extension of time should not be granted.

1. The Act was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the "ART") (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the "Consequential Act")).
2. This judgment relates to decisions made by the Tribunal. As outlined above, those decisions are dated 19 June 2023 and 27 July 2023 and thus predate those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the dates of the Tribunal's decisions (or as at the date of any relevant matter referenced in this judgment).
3. At the time that the applicant made an application to this Court, the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
4. In the circumstances, this Court made an order (at the hearing of this matter on 13 March 2025) substituting the ART as the second respondent in this proceeding.

1. The applicant is a citizen of Malaysia (Court Book ("CB") 14 & 38). He arrived in Australia in July 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 51).
2. On 18 August 2017, the applicant applied for the visa (CB 1-37 & 51).
3. On 24 November 2017, a delegate of the Minister refused to grant the applicant the visa (CB 51-59). The delegate explained that the applicant had claimed to fear economic hardship and noted that he had not claimed to fear harm for one or more of the reasons set out in s 5J(1)(a) of the Act. The delegate was thus not satisfied that the applicant was a refugee (as defined in s 5H of the Act and the criterion in s 36(2)(a) of the Act) (CB 52). The delegate was also not satisfied that the applicant was a person in respect of whom Australia had complementary protection obligations (under s 36(2)(aa) of the Act) (CB 53).
4. On 27 November 2017, the applicant lodged an application for review of the delegate's decision with the Tribunal (CB 60-61). In that application, the applicant provided a postal address and an email address (the "nominated email address") under the "[c]orrespondence details" section of the application form and asked that all correspondence be sent to him directly (as the "review applicant") (CB 61).
5. On 14 March 2023, the Tribunal wrote to the applicant (by letter sent to him via email at the nominated email address) inviting him to provide information (in writing) pursuant to s 424(2) of the Act (the "s 424 invitation letter") by completing the questions detailed in an attachment to their letter (the "questionnaire") (CB 65-67).
6. Relevantly, the s 424 invitation letter stated (CB 66-67):

You are invited to provide the following information in writing:

• Responses to all of the questions detailed in the attachment to this letter ('Applicant information form (s.424(2) response)')

To reply to this Invitation, please record your responses on the attachment to this letter and email (or mail) the completed responses with any attachments to the Tribunal.

The information should be received by 28 March 2023. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

If you cannot provide the information by 28 March 2023, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us by 28 March 2023 and you must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

1. No response was received from or on behalf of the applicant (CB 84 at [1]).
2. On 26 April 2023, the Tribunal invited the applicant (by letter sent to him via email at the nominated email address) to attend a hearing before it on 19 June 2023 at 9.30am (WA time) (the "hearing invitation letter") (CB 68-71).
3. Relevantly, the hearing invitation letter stated (CB 70-71):

What you should do on receipt of this letter

...

If you are not able to appear as scheduled, for instance, if you are not available on this day or you believe you will experience difficulty participating in the hearing as arranged, you need to advise us as soon as possible. Please note that we will only make changes to this hearing if satisfied that it is reasonable and there are good reasons for doing so.

The Presiding Member will consider any submissions and you will be advised of the outcome of that consideration before the hearing. You must assume that the hearing will go ahead as scheduled unless we have advised you otherwise.

...

What will happen if you don't appear

If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. Not appearing at the scheduled hearing means:

• if you were invited to appear at an AAT office (including by video from an AAT office), you do not attend the AAT office at the scheduled time;

...

A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

1. With the hearing invitation letter, the Tribunal also gave the applicant a fact sheet titled "Information about hearings" (the "hearing information fact sheet") (CB 72-76).
2. The hearing information fact sheet relevantly stated (CB 75-76):

What if I cannot attend the scheduled hearing?

If you are not able to attend the scheduled hearing, or you would prefer that the hearing take place in a different way (e.g. at an AAT office instead of by video or telephone), you must advise us of this as soon as possible. Please note that we will only make changes if we are satisfied that it is reasonable and there are good reasons for doing so.

If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. Not appearing at the scheduled hearing means:

• if you were invited to appear at an AAT office (including by video from an AAT office), you do not attend the AAT office at the scheduled time;

...

If you seek to adjourn your hearing for a medical reason, you must provide a doctor's certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide a convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.

What happens if an application is dismissed?

If we dismiss your application, a written statement of the dismissal decision will be given to you. Within 14 days after receiving notice of the dismissal decision you may apply for reinstatement of the application.

On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.

If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14-day period, we must confirm the decision to dismiss the application. If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department's decision remains in force.

A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.

1. The applicant did not attend the hearing scheduled for 19 June 2023 at 9.30am (or at all) (CB 78-80).
2. That same day (being on 19 June 2023 at 2.28pm), the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Act (the "Non-Appearance Decision") (CB 84-85).
3. The applicant was notified of that Non-Appearance Decision (and advised of his right to apply for reinstatement) by letter sent that same day (being on 19 June 2023) via email to the nominated email address (CB 81-83). That letter stated (CB 82):

You may apply to us, in writing, for reinstatement of the application by 3 July 2023. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

1. With that notification letter, the Tribunal also gave the applicant a fact sheet titled "Information about dismissal of applications" (the "dismissal fact sheet") (CB 86-87).
2. The dismissal fact sheet relevantly stated (CB 86):

What happens if an application is dismissed?

Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.

If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.

A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.

1. The applicant did not seek reinstatement (CB 91 at [4]).
2. On 27 July 2023, the Tribunal confirmed the Non-Appearance Decision made on 19 June 2023 (the "Confirmation Decision") (CB 90-91). By virtue of s 426A(1F) of the Act, the delegate's decision was taken to be affirmed.
3. On 28 July 2023, the applicant was notified of the Confirmation Decision by letter sent to him via email (at the nominated email address) (CB 88-89). With that notification letter, the Tribunal provided the applicant with a further copy of the dismissal fact sheet (CB 86-87).
4. The dismissal fact sheet relevantly stated (CB 86-87):

What happens if we confirm the dismissal?

If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the decision of the Department of Home Affairs (the department) remains in force.

...

If you think that our decision is wrong in law, you may consider seeking judicial review in the Federal Circuit and Family Court of Australia. If you wish to apply for review, you must do so within 35 days of the date of our decision.

1. On 23 October 2023, the applicant applied to this Court for judicial review of the Tribunal's decision Confirmation Decision. Unfortunately, that application was filed outside of the 35-day time limit specified in s 477(2) of the Act.
2. Accordingly, the applicant requires an extension of time within which to pursue the substantive matter in this Court.
3. This judgment addresses whether an extension of time should be granted.
4. For the reasons that follow, the Court concludes that an extension of time should not be granted in this case.

1. The materials before the Court include the application for judicial review (containing the application for an extension of time within which to make that application) filed by the applicant on 23 October 2023, an affidavit from the applicant sworn on 18 October 2023 and filed in this Court on 23 October 2023 (taken as read and in evidence at the hearing of this matter), a court book numbering 91 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 21 February 2025 and the affidavit of service of Tareena Martin affirmed on 25 February 2025 and filed on 6 March 2025 (also taken as read and in evidence at the hearing of this matter).
2. On 17 June 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
3. On 23 October 2024, an order was made by Registrar van der Westhuizen of this Court transferring the proceeding to the Perth Registry of the Court.
4. The applicant appeared before this Court (on 13 March 2025) without legal representation. He was assisted by an interpreter in the Mandarin language.
5. The Court noted that the applicant had not sought review of the Non-Appearance Decision. Rather, he had only asked for a review of the Confirmation Decision. The Court explained to the applicant why this was "an issue" and, with his consent, made an order amending the application for judicial review to also include the seeking of review of the Non-Appearance Decision.
6. Noting that the applicant was not legally represented, the Court also explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decisions.
7. In this matter, the Tribunal's Non-Appearance and Confirmation Decisions are dated 19 June 2023 and 27 July 2023 respectively. The dates by which the applicant was required to file his application in this Court were 24 July 2023 (in relation to the Non-Appearance Decision) and 31 August 2023 (in relation to the Confirmation Decision). Unfortunately, the applicant did not file his substantive application until 23 October 2023. Hence, the delays here are 91 days in relation to the Non-Appearance Decision and 53 days in relation to the Confirmation Decision.
8. The Court explained that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
9. In this regard, the Court notes that, pursuant to s 477(2) of the Act:

(a) an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and

(b) the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.

1. Here, the applicant requested an extension of time in writing and provided "grounds" explaining why he believed that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
2. In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
3. Noting that the applicant appeared without any legal assistance, the Court explained to him that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 (and confirmed in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 ("Tu'uta Katoa") at [12]), the most common factors considered by the Court in matters of this sort include:

(a) the length of delay;

(b) whether the respondent (or any third parties) would suffer any prejudice due to the delay;

(c) whether the explanation for the delay is adequate; and

(d) whether the proposed substantive application for judicial review has "merit".

1. In relation to (d) above, it was further explained that when determining if a proposed application has "merit", the Court will do so at a "reasonably impressionistic level": MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an "arguable case" (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 ("MZAIB").
2. The Court invited the applicant to address each of the factors outlined above and to highlight anything that he considered relevant to his request for an extension of time. The applicant's responses are discussed in the consideration that follows.

1. As outlined above (at [38]), the delays in this matter are 91 days in relation to the Non-Appearance Decision and 53 days in relation to the Confirmation Decision.
2. In the Court's view, the delays in this matter are moderate, but they are not significant.
3. This weighs in favour of granting the applicant's request for an extension of time.

1. The Minister's representative conceded (at [24] in written submissions filed in this Court on 21 February 2025) that the Minister would not face any significant prejudice if the extension of time were granted.
2. This also weighs in favour of granting the extension of time.

1. In this matter, the applicant's "grounds" for an extension of time provide as follows (without alteration):
   1. I was not informed of the decision made by the AAT in time. I even had to request for Freedom of Information (FOI) to retrieve my documents.
   2. I was not made known initially about the exemption of court fees and I thought I could not afford the court fees.
2. To the extent that the applicant suggests that he was not aware of the Confirmation Decision (made by the Tribunal on 27 July 2023), the Court disagrees for the reasons that follow.
3. As set out above, on 28 July 2023, the applicant was notified of the Confirmation Decision by letter sent to him via email (at the nominated email address) (CB 88-89). With that notification letter, the Tribunal provided the applicant with a further copy of the dismissal fact sheet (CB 86-87). The dismissal fact sheet relevantly stated (emphasis added) (CB 86-87):

What happens if we confirm the dismissal?

If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the decision of the Department of Home Affairs (the department) remains in force.

...

If you think that our decision is wrong in law, you may consider seeking judicial review in the Federal Circuit and Family Court of Australia. If you wish to apply for review, you must do so within 35 days of the date of our decision.

1. The Court notes that the Tribunal is permitted to communicate with an applicant via email pursuant to s 441A(5)(b) of the Act and did so here.
2. By virtue of s 441C(5) of the Act, an applicant is deemed to have received a document at the end of the day upon which it was transmitted to the email address provided by that applicant (to the Tribunal) in relation to his or her review application. Further, by sending the document by one of the methods set out in s 441A of the Act, the applicant is taken to have received that document at the time specified in s 441C of the Act (in this case, at the end of the day that it was sent by email to the applicant), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 ("SZNZL") at [36].
3. On the basis of the legislative provisions and case law set out above, the applicant here is deemed to have received notification of the Confirmation Decision at the end of the day on 28 July 2023 (being the date on which the Tribunal sent the notification letter to him) (CB 88-89).
4. To the extent that the applicant claims that he did not file his application with this Court because he was unable to afford filing fees, while the Court is sympathetic to the difficulties faced by many applicants who appear before this Court in similar circumstances, the Court also notes that financial constraints or an inability to pay the filing fee are not acceptable explanations for failing to lodge a judicial review application within the requisite time period: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]-[26] and DWK17 v Minister for Home Affairs [2019] FCA 66 ("DWK17") at [12] (citing SZUMJ v Minister for Immigration and Border Protection [2017] FCA 1380 ("SZUMJ") at [16]). Further, in this matter, as in DWK17 and SZUMJ, there is no evidence before the Court to suggest that the applicant took any steps to seek waiver of the filing fee. Nor is there any evidence of the steps that the applicant took in relation to raising the filing fee: DWK17 at [12].
5. There is also no evidence before the Court to suggest that the applicant contacted the Court registry to discuss this issue or to seek any advice or assistance. In this regard, the Court notes recent comments made by the Federal Court in Englezos v Secretary, Department of Social Services [2023] FCA 31 as follows (emphasis added):
   1. ... it is ultimately the proposed applicant's case and responsibility to ensure compliance with the relevant requirements; see for example SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33] ...
   2. Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not "mere aspirational guidelines" and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40].
6. For the reasons outlined above, the Court does not consider the explanations provided by the applicant in this matter to be satisfactory. This weighs against granting an extension of time.

1. Arguably, the most critical factor for consideration when determining whether an application for an extension of time ought to be granted is whether the proposed application for judicial review has any "arguable prospect of success".
2. In this regard, the Court references the High Court's decision in Tu'uta Katoa as follows (citations excluded):
   1. French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
3. Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on the substantive "grounds of review" (set out in the application for judicial review filed by him) and to outline any other concerns that he might have in relation to the Tribunal's decisions. This is now the standard procedure in this Court following the decision of the Federal Court of Australia in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
4. To assist the applicant, the Court explained to him that the only issue before the Court was whether there is an arguable case that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at [207]- [208];

(e) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

(f) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].

1. It was also explained that this Court cannot review the merits of the Tribunal's decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining whether there is an "arguable case" (viewed impressionistically) that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
2. Against this background, the applicant stated that he suspected that the Tribunal "had not properly assessed [his] claims" and that is why he wanted to have his "claims reviewed and assessed one more time".
3. These comments, to the extent that they point to any issue of an arguable case of jurisdictional error on the part of the Tribunal, will be discussed further below.

1. In order to determine whether the proposed application for judicial review has "merit", it is useful to first set out the Tribunal's decisions.

1. The Non-Appearance Decision dated 19 June 2023 provides (CB 84-85):
   1. On 14 March 2023 the Tribunal wrote to the review applicant pursuant to s 424(2) of the Migration Act 1958 (Cth) (the Act) inviting them to provide information in relation to his application. The information sought related to the applicant's current circumstances and claims for protection. The invitation stated that if the Tribunal did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. The invitation also highlighted that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. No response to this invitation was received.
   2. Notwithstanding the applicant's failure to respond to the invitation, the Tribunal exercised its discretion to invite the applicant to a hearing pursuant to s 425 of the Act.
   3. Accordingly, on 26 April 2023, the applicant was invited under s 425 of the Act to appear before the Tribunal on 19 June 2023 at 9:30 am (WA time). The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
   4. The review applicant did not respond to the hearing invitation. No request for an adjournment was received.
   5. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place.
   6. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) of the Act and the invitation has not been returned to sender.
   7. The review applicant has not engaged with the Tribunal about the review process since their application for review was lodged on 27 November 2017.
   8. The Tribunal notes the applicant did not provide any telephone contact details with their application for review. The Tribunal was therefore unable to send SMS reminders to the applicant or contact the applicant by phone on the day of the hearing.
   9. There is no record of the review applicant contacting the Tribunal by any other means at the scheduled time to explain why they had not appeared before the Tribunal. The Tribunal considers that no satisfactory reason for the non-appearance has been given.
   10. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

1. The Confirmation Decision dated 27 July 2023 provides (CB 90-91):

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 November 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. On 19 June 2023 the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance withs 4268(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

4. Tribunal records indicate that on the date of making this decision the applicant has not made any application for reinstatement.

5. As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.

DECISION

6. The Tribunal confirms the decision to dismiss the application.

1. The application for judicial review filed by the applicant (on 23 October 2023) contains two proposed "grounds of review" as follows (without alteration):
   1. My application was unfairly dismissed because the AAT claimed that I was absent at a hearing. In fact, I have never been informed of the said hearing nor being contacted about my intention of attending the hearing.
   2. The AAT had mistakenly dismissed my application because I would have attended the hearing if I was informed about it. I lost my chance to present my claims and I suspect that the AAT intentionally rushed my application without proper consideration.

1. As outlined above, ground one provides as follows:
   1. My application was unfairly dismissed because the AAT claimed that I was absent at a hearing. In fact, I have never been informed of the said hearing nor being contacted about my intention of attending the hearing.
2. The applicant repeated this concern when he came before this Court (again stressing that he "did not receive the email telling [him] to attend the hearing").
3. As set out above, the applicant did not attend the Tribunal hearing (scheduled to take place on 19 June 2023) (CB 78-80).
4. As a result, the Tribunal dismissed the applicant's review application pursuant to s 426(1A)(b) of the Act by way of the Non-Appearance Decision (CB 84-85).
5. As explained by this Court in BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176 ("BHG22"), in matters of this sort, the Court must consider whether the applicant was properly invited to appear before the Tribunal (as required by s 425 of the Act).
6. The Tribunal was required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act (as was in force at the time of the Tribunal's decisions), which provided as follows:

425 Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

1. On 26 April 2023, the Tribunal invited the applicant (via email sent to the nominated email address) to attend a hearing before it, scheduled to take place on 19 June 2023 (CB 68-76).
2. Section 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provided as follows:

(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2) The notice must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4) The notice must contain a statement of the effect of section 426A.

(a) was addressed to the applicant (CB 69);

(b) clearly indicated the date, time and place at which the applicant could attend that hearing (being on 19 June 2023 at 9.30am (WA time) at the Tribunal's Perth registry) and provided the applicant with the address at which the hearing would take place (CB 69): s 425A(1) of the Act;

(c) was sent to the applicant via email (a method approved by s 441A(5)(b) of the Act) to the nominated email address on 26 April 2023 (CB 68) and, as a result of s 441C(5) of the Act, the applicant was taken to have received the notice at the end of that day: s 425A(2)(a) of the Act;

(d) was given to the applicant 54 days prior to the scheduled hearing, exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (being 14 days after the day the person receives the notice): s 425A(3) of the Act; and

(e) contained a statement describing the effect of s 426A of the Act and what would happen if the applicant did not attend the hearing (CB 71): s 425A(4) of the Act.

1. For completeness, the Court notes that, as detailed above (in relation to the applicant's grounds for requesting an extension of time), where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter - where the hearing invitation letter was sent via email), the applicant is "taken to have received that document" at the time specified in s 441C of the Act (in this case, at the end of the day it was transmitted, being 26 April 2023), regardless of whether the document was actually received: SZNZL at [36].
2. The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act and that the applicant was properly invited to attend the hearing.
3. No arguable case of jurisdictional error arises in relation to ground one.

1. Ground two states:
   1. The AAT had mistakenly dismissed my application because I would have attended the hearing if I was informed about it. I lost my chance to present my claims and I suspect that the AAT intentionally rushed my application without proper consideration.
2. To the extent that the applicant (in ground two) again states that he was not informed of the Tribunal hearing, this issue has been addressed by the Court above (in relation to ground one).
3. Insofar as the applicant suggests that the Tribunal acted unfairly or unreasonably when exercising its discretion to dismiss the applicant's matter for non-appearance, the Court disagrees for the reasons that follow.
4. As outlined by this Court in ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744 (and other similar matters), before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (pursuant to s 425 of the Act) to appear before it. Further, s 425 of the Act and s 425A of the Act are to be read together: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]. That is, if s 425A of the Act has not been complied with, a valid notice of invitation has not been sent and the Tribunal's powers under s 426A of the Act will not be enlivened.
5. As set out above (in relation to proposed ground one), the Court is satisfied that the applicant in this matter was properly invited to appear at the Tribunal hearing (as required by s 425 of the Act and s 425A of the Act).
6. As the applicant had been invited to attend a hearing, but failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section provided as follows:

426A Failure of applicant to appear before Tribunal

(a) is invited under section 425 to appear before the Tribunal; but

(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(1A) The Tribunal may:

(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.

Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

1. The applicant did not appear at the hearing on 19 June 2023. He does not dispute this.
2. In the circumstances, two options were available to the Tribunal. It could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or it could dismiss the applicant's application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
3. In this matter, the Tribunal chose to dismiss the application without any further consideration (as allowed by s 426A(1A)(b) of the Act).
4. The Tribunal's decision to exercise its powers in this regard is discretionary. As such, that decision must be made "reasonably".
5. In the circumstances of this matter, the Court is satisfied that the Tribunal acted reasonably. Relevantly:

(a) the hearing invitation was sent to the applicant by email (at the nominated email address) and there was no evidence before the Tribunal to suggest that the applicant had not received that invitation (for example, there was no email delivery failure notification received) (CB 68);

(b) the applicant did not engage or make contact with the Tribunal at all after lodging his application for review with the Tribunal (on 27 November 2017);

(c) no further material had been provided to the Tribunal by the applicant in support of his review application;

(d) the applicant did not respond to the Tribunal's s 424 invitation letter (sent to him on 14 March 2023) (CB 65-67 & 84);

(e) the applicant did not appear at the Tribunal hearing at the scheduled time of 9.30am (WA time) on 19 June 2023 (or at all) (CB 69 & 78-80); and

(f) the Tribunal waited nearly five hours (until 2.28pm on 19 June 2023) before determining that the applicant was not going to appear at that hearing and before the Tribunal member ultimately made the Non-Appearance Decision (CB 85).

1. The Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicant's review application pursuant to s 426A(1A)(b) of the Act.
2. No arguable case of jurisdictional error arises in this regard.
3. By proposed ground two, the applicant also suggests that his application was not given "proper consideration". As set out above, this concern was also raised in the applicant's oral submissions before this Court (where he told the Court that the Tribunal "had not properly assessed [his] claims" and that is why he wanted to have his "claims reviewed and assessed one more time").
4. The Tribunal in this matter did not consider the applicant's claims or his review application. However, for the reasons that follow, the Tribunal was not required to do so.
5. As outlined above, when the applicant failed to appear at the Tribunal hearing (scheduled to take place on 19 June 2023), the Tribunal was legislative empowered (by virtue of s 426A(1A) of the Act) to either proceed to determine the matter before it without any further action (pursuant to s 426A(1A)(a) of the Act) or dismiss the applicant's review application without any further consideration (pursuant to s 426A(1A)(b) of the Act). The Tribunal here exercised its discretion to dismiss the matter.
6. Having elected to dismiss the application without any further consideration (rather than proceeding to determine the matter before it), the Tribunal was not required to consider the applicant's review application (or his protection claims) in this matter.
7. As outlined above, the Tribunal's decision in that regard was not unreasonable or unfair in the circumstances.
8. In relation to any procedural fairness concerns that the applicant may have regarding the Confirmation Decision, the Court notes that, when the applicant was advised that his application had been dismissed, he was advised that he could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (or by 3 July 2023) (CB 82 & 86). This complied with s 426B(5) of the Act and s 426B(6) of the Act.
9. The applicant did not apply for reinstatement (CB 91).
10. Section 426A(1E) of the Act relevantly provided as follows:

If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.

1. In circumstances where no application for reinstatement was made, the Tribunal was required to confirm the decision to dismiss the applicant's application and did so. The Tribunal provided a written statement to that effect, in the form of the Confirmation Decision (on 27 July 2023) (CB 90-91).
2. No arguable case of error arises in relation to the Tribunal's procedural fairness obligations in this regard.
3. No arguable case of jurisdictional error arises in relation to proposed ground two.

1. In its duty to assist self-represented litigants, the Court has considered for itself whether any arguable case of error arises in the Tribunal's decisions (as per the decision in MZAIB).
2. In this regard, the Court will consider whether the Tribunal exceeded its jurisdiction by inviting the applicant to attend a hearing.
3. The Court notes that the Tribunal wrote to the applicant on 14 March 2023 inviting him to provide information pursuant to s 424(2) of the Act (by way of the s 424 invitation letter) (CB 65-67).
4. The applicant did not respond to that invitation (CB 84 at [2]).
5. As explained by this Court in BHG22, if an applicant is invited under s 424(2) of the Act to give information but fails to do so, he or she may lose the right to attend a Tribunal hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.
6. As a consequence of the interaction between ss 424, 424C and 425 of the Act, if an applicant fails to respond to an invitation under s 424 of the Act, the consequence will be to attract the cascading operation of ss 424C((1) and 425(2)(c). Ultimately, the result is that the applicant would no longer be entitled to appear before the Tribunal to present his or her case (see, generally, M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247 at [25]- [31]).
7. However, the Court notes that there is a critical difference in the processes between Part 7 and Part 5 reviews (as were in force at the time that the Tribunal sent the s 424 invitation letter to the applicant in this matter). In a Part 5 process, if an applicant failed to comply with a request for information under s 359 of the Act (which was equivalent to s 424 of the Act in Part 7), by operation of s 363A of the Act, the Tribunal would have no discretion (nor any power) to conduct a hearing. There is no such consequence in relation to a review under (what was then) Part 7 of the Act.
8. The Tribunal thus retained a discretion under Part 7 of the Act to schedule a hearing if it considered it necessary (though the applicant would no longer be "entitled" to attend such a hearing).
9. The Court also notes the comments of Driver FM (as he was then) in SZQLJ v Minister for Immigration & Citizenship [2011] FMCA 932 as follows (emphasis added):
   1. ...the Tribunal [acting under Part 7], unlike the Tribunal [acting under Part 5], is not required to deny an applicant a hearing opportunity to which he or she has been invited because of a non‑provision of requested information...
10. In this matter, the Tribunal retained its discretionary power to invite the applicant to attend a hearing and did so. The Court is also satisfied that the Tribunal was not required to deny the applicant the opportunity to do so.
11. No arguable case of error arises in this regard.

Conclusion regarding merits of the substantive application

1. The applicant's proposed "grounds" of review and oral submissions (assessed at a reasonably "impressionistic level" only) do not identify any arguable case of jurisdictional error on the part of the Tribunal.
2. This weighs heavily against the granting of an extension of time.

1. The lack of a satisfactory explanation for the moderate delays in this matter and the lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at a reasonably impressionistic level only) are such that it is not in the interests of the administration of justice for the Court to grant the applicant an extension of time.
2. The application for an extension of time (as amended on 13 March 2025) is, accordingly, dismissed.

I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.