CQX20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1208

1. The consequence of the application before this Court being filed late is that the Court must consider the two limbs of s 477(2) of the Act.

1. The first limb contained in s 477(2)(a) of the Act is whether the application has been made to the Court in writing detailing why the extension should be granted.
2. In his originating application, the applicant sought leave of the Court to grant him an extension of time and specified the following grounds of application for extension of time:
   1. There exist errors in my case.
3. Further, in his originating application, the applicant specified the following grounds of application:
   1. AAT did not consider my claims and did not give reasons for rejecting my application in writing.
   2. AAT did not consider all relevant information before making its decision.
   3. AAT did not consider what would happen to me if I return to China.
   4. AAT did not apply law properly.
4. Section 477(2)(a) of the Act is thus satisfied.

Necessary in the interests of the administration of justice

1. The second limb of s 477(2)(b) allows the Court to grant an extension of time for the filing of an application, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.
2. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; HCA 28 (Tu'uta Katoa) at [12], the High Court observed that the Court's power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time but the Court may look at a myriad of facts and circumstances including the length of the delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.
3. The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case at [40], Jagot and Halley JJ found that the Court has an obligation 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'. Their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time - although it is noted that this list is not exhaustive:

(a) the extent of the delay and explanation for it;

(b) any prejudice to the respondent if an extension were granted;

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

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

(e) the merits of the substantive application.

The extent of the delay and explanation for it

1. As stated above, the applicant's delay in filing his judicial review application amounts to sixty-three days out of time.
2. Typically, the longer the delay the more persuasive the explanation for that delay needs to be. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse extension of time in the case of long delay: see Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) per Wigney J at [38]; Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at [195].
3. At hearing the applicant submitted that he did not know that he had lodged his application outside the requisite timeframe. When given the opportunity to elaborate on that submission, the applicant did not avail himself of that opportunity to make any further submissions.
4. The Minister submits that the extent of the delay is significant and that the applicant has not provided a satisfactory explanation for the delay.
5. Having considered the parties' submissions and the available evidence, I am of the view that the extent of the delay in making his application to this Court is significant and the applicant has not offered a discernible, let alone satisfactory, explanation for that delay. In the absence of a satisfactory and acceptable explanation, this delay weighs against the grant of an extension.

1. The Minister concedes he would not suffer substantial prejudice if the extension were to be granted. Nevertheless, the mere absence of prejudice is insufficient to warrant the grant of an extension of time: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. I consider this factor neutral regarding the grant of an extension.

1. If the extension of time is refused then the Tribunal's decision will stand, with all the consequences that follow for the applicant in relation to his protection visa application. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, however an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth).
2. At hearing, the applicant submitted that a consequence of not being granted an extension was that he would not be able to remain in Australia. When asked to expand on this, the applicant declined to do so. Nevertheless, I note the applicant's submission in his affidavit that he does not wish to return to China, was mistreated there and is scared to return there.
3. I accept the impact on the applicant is significant in that he would be returned to his country of nationality which is a circumstance he claims to fear. I consider this to be a matter weighing in favour of the grant of an extension.

1. The applicant submitted that the interests of the public at large would be unaffected by the outcome of his extension of time application. The Minister submits that there is a public interest in the finality of administrative decision making, particularly given the statutory timeframe in which to seek review.
2. In my view, the present case does not offer any 'exceptional' circumstances and the proposed grounds lack merit which would justify an extension of time being granted: see Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89; HCA 42 at [3]; WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [30]. Furthermore, any delay caused by the extension of time would undermine the public interest in the finality of decision making, which causes 'some prejudice' to the public at large: see Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655 at [128] per Katzmann J. I consider this factor weighs somewhat against the granting of the extension.

1. In considering whether a proposed appeal has merit, the Court will do so at a 'reasonably impressionistic level' by way of assessing whether the proposed grounds are 'arguable', 'reasonably arguable' or 'sufficiently arguable' to warrant the grant of extension of time: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158; FCA 1392 at [62]-[63], approved by the Full Court in MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110.
2. The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu'uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):

For example, if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.

1. 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 that may warrant an extension being granted: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158; FCA 1392 (MZAIB).
2. Mindful of the Court's obligations towards unrepresented litigants as outlined in MZAIB at [59]-[77], [100] and [112]-[113], I have scrutinised the application, the materials before the Tribunal and the Tribunal's decision to identify any jurisdictional error. I have also read the applicant's grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal's part. Nevertheless, I am of the view that error has not been disclosed and, for the following reasons, am not persuaded that a reasonably arguable case of jurisdictional error arises out of the substantive application.

1. The grounds of the application allege that the Tribunal did not consider the applicant's claims including his fear of harm on return to China, did not consider all relevant information and failed to review the application according to law. The applicant was unable to particularise these grounds at hearing, beyond stating that the Tribunal had not considered his claims. I agree with the Minister's submission that these grounds are misconceived.
2. Section 426A(1A)(b) of the Act provides that where an applicant is invited under s 425 to appear before the Tribunal and the applicant does not so appear, the Tribunal may, by written statement under s 426B, dismiss the application without any further consideration of the application or information before the Tribunal. When this was explained to the applicant as the basis upon which the Tribunal had determined the review application, the applicant was unable to provide any further submissions in support of his pleaded grounds. Instead, the applicant simply raised a complaint about his visa status not authorising him to work in Australia.
3. I conclude the pleaded grounds do not give rise to any arguable case of jurisdictional error.

1. I further agree with the Minister that the central issue before the Court is whether the dismissal decision was legally unreasonable. The discretion to proceed under s 426A(1A)(b) of the Act, invoked by non-attendance at a Tribunal hearing, is one that must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; HCA 18 at [63] per Hayne, Kiefel and Bell JJ; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713; HCA 30 (SZVFW) at [4] per Kiefel CJ. An assessment of whether the Tribunal acted unreasonably in the exercise of such a discretion is invariably fact dependent and sensitive to context, and the Tribunal's reasons are the focal point of any such assessment: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; FCAFC 1 at [46]-[47] per Allsop CJ, Robertson and Mortimer JJ.
2. Having closely examined the Tribunal's reasons and surrounding context, I agree with the Minister's submission that the dismissal decision was legally reasonable.
3. The hearing invitation dated 29 January 2020 complied with the requirements of s 425 of the Act because it:

(a) contained an invitation to the applicant to appear before it to give evidence and present arguments: see ss 425(1) and 425(1)(a);

(b) notified the applicant that he could give the Tribunal written notice to obtain oral evidence from a person or persons: see ss 426(1)(b) and 426(2);

(c) notified the applicant of the specified day, time and place of the hearing: see s 425A(1);

(d) was given to the applicant by transmission to the last email address provided to the Tribunal in connection with the review, being an approved method for the giving of a document under s 441A(5)(d): see s 425A(2)(a);

(e) provided the applicant with a period of notice no less than minimum prescribed notice period of 14 days provided for in reg 4.35D of the Migration Regulations1994 (Cth): s 425A(3); and

(f) contained a statement to the effect of s 426A about the options available to the Tribunal if the applicant failed to appear: see s 425A(4).

1. Given the Tribunal's provision of a valid invitation to hearing and the applicant's failure to attend the hearing specified within that invitation, the Tribunal's power to dismiss the review application was enlivened. It was open to the Tribunal to exercise its discretion to proceed to dismiss that application pursuant to s 426(1A)(b) of the Act. In my view, it was reasonable for the Tribunal to decide to dismiss the application given the following features, or circumstances, of the case before it:

(a) The applicant was validly invited to hearing and was thereby on notice of the hearing and the consequences of non-attendance.

(b) Following the decision to dismiss the review application for reason of non-appearance, the applicant still had the opportunity to seek reinstatement in order avail himself of a further opportunity to have his case heard or otherwise addressed by the Tribunal.

(c) The Tribunal's dismissal decision records the Tribunal having sent two SMS hearing reminders to the applicant both five and one business days before the scheduled hearing.[13] The Tribunal's case notes confirm those SMS hearing reminders were sent to the last mobile phone number the applicant provided to the Tribunal.[14] The Tribunal clearly made attempts to contact the applicant to enable his engagement with the Tribunal and participation at the hearing: SZOPV v Minister for Immigration and Border Protection [2016] FCA 514 at [13] per Pagone J distinguishing AZAFB v Minister for Immigration and Border Protection [2015] FCAFC 1383; (2015) 244 FCR 144; FCA 1383 (AZAFB); see also CER15 v Minister for Immigration and Border Protection [2016] FCA 1057 at [42] per Markovic J.

(d) The applicant failed to attend his protection visa interview before the Minister's department and did not take any steps to submit any material to the Tribunal in support of his claim for protection after lodging his review application. Further, there is no record of the applicant otherwise contacting the Tribunal in order to facilitate the provision of submissions or evidence in support of his case. This lack of engagement is demonstrable of the applicant not 'actively seeking' to participate either in the review application before the Tribunal or the protection visa application before the Department: Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 141 ALD 619; FCA 915 at [95]-[96] per Mortimer J. Put simply, the applicant had not substantively engaged with the review: AZAFB at [24] per North ACJ; SZVFW.

1. I agree with the Minister's submissions that these factual circumstances demonstrate that the Tribunal's exercise of its statutory discretion was not unreasonable in a legal sense, and did not lack any evident and intelligible justification: Li at [76] per Hayne, Kiefel and Bell JJ.

1. Further, I note the applicant's correspondence sent to the Tribunal on 26 February 2020 by which he notified a change in his contact details. Despite being under no obligation to do so, on 27 February 2020, the Tribunal sent the applicant correspondence to his new email address by which it drew the applicant's attention to its correspondence and dismissal decision sent on 17 February 2020 and reminded him that it may require a response from him before a certain date. In my view, while nothing turns on this factual circumstance, the Tribunal went beyond what it was obliged to do in order to make the applicant aware of its non-appearance decision and his opportunity to seek reinstatement of the review application.
2. Finally, I note that s 426A(1E) of the Act makes clear that where no application for reinstatement is received within the 14 day period prescribed by s 426B(2), the Tribunal must confirm the dismissal decision. As the applicant did not apply for reinstatement, the Tribunal was correct to find that it was obliged to confirm the dismissal decision and no error arises from the confirmation decision.
3. Given the foregoing analysis, I conclude the merits of the substantive judicial review application are lacking and this weighs heavily against granting an extension of time.

1. As the application was filed with this Court sixty-three days outside the statutory timeframe, the Court may only grant an extension of time within which the application was to be made if it is satisfied such extension is in the interests of the administration of justice.
2. Taking into account the considerations above, particularly the absence of a satisfactory explanation for the delay in filing the application and the lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, I am not satisfied it is in the interests of the administration of justice that time be extended in this matter.
3. I will hear the parties as to costs.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.