Aay22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 628
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 628
File number: MLG 13 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 4 August 2022 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – jurisdictional error identified by the Minister – unable to obtain applicant’s consent to remit – Court satisfied the Tribunal erred – writs issued. Legislation: Migration Act 1958 (Cth), ss 424 & 476 Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 4 August 2022 Place: Perth Applicant: No appearance Counsel for the First Respondent: Mr J Hutton Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 13 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAY22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
4 AUGUST 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the Administrative Appeals Tribunal quashing the decision of the Administrative Appeals Tribunal dated 25 November 2021.
2.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 14 July 2017 according to law.
3.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
4.The first respondent pay the applicant’s costs he is entitled to as a self-represented litigant.
5.Written reasons for judgment be published from Chambers at a later date.
THE COURT NOTES THAT:
The First Respondent concedes that the decision of the Second Respondent is affected by jurisdictional error because the Second Respondent failed to consider information it sought and received pursuant to section 424 of the Migration Act 1958 (Cth), being the applicant’s marriage certificate, in breach of s 424(1) of the Act. The Second Respondent made a critical error of fact that this information had not been provided to the Second Respondent when, in fact, it had been provided. The First Respondent accepts that this error was material as, if the second respondent had considered the marriage certificate (as it was obliged to do), it would have accepted that the applicant had been married to a Muslim woman in the past and this could have resulted in a different finding as to whether the applicant had breached Sharia law and faced consequences on return to Malaysia (see: Tribunal decision at [56]).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
This matter was listed for a hearing on before the Court 4 August 2022. When the matter was called, there was no appearance by or for the applicant.
The Court made the following orders:
1.A writ of certiorari issue directed to the Administrative Appeals Tribunal quashing the decision of the Administrative Appeals Tribunal dated 25 November 2021.
2.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 14 July 2017 according to law.
3.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
4.The first respondent pay the applicant’s costs he is entitled to as a self-represented litigant.
5. Written reasons for judgment be published from Chambers at a later date.
The Court also noted as follows:
The First Respondent concedes that the decision of the Second Respondent is affected by jurisdictional error because the Second Respondent failed to consider information it sought and received pursuant to section 424 of the Migration Act 1958 (Cth), being the applicant’s marriage certificate, in breach of s 424(1) of the Act. The Second Respondent made a critical error of fact that this information had not been provided to the Second Respondent when, in fact, it had been provided. The First Respondent accepts that this error was material as, if the second respondent had considered the marriage certificate (as it was obliged to do), it would have accepted that the applicant had been married to a Muslim woman in the past and this could have resulted in a different finding as to whether the applicant had breached Sharia law and faced consequences on return to Malaysia (see: Tribunal decision at [56]).
These reasons for judgment are those referred to in order 5 above. They explain why the Court proceeded to issue writs in this matter despite their being no appearance from the applicant before this Court on 4 August 2022.
BACKGROUND
Before the Court is an application for judicial review filed by the applicant in the Melbourne Registry of this Court on 29 December 2021 (the “application”). The application was accompanied by an affidavit deposed by the applicant on 22 December 2021 (and filed on 29 December 2021).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”) and seeks review of a decision made by the Administrative Appeals Tribunal on 25 November 2021.
On 29 March 2022, Mr Jeremy Hutton (“Mr Hutton”), counsel for the first respondent (the “Minister”) sent an email to the applicant at the address for service listed on the application filed on 29 December 2021. The email proposed consent orders for the applicant’s review and requested he provide evidence of any costs he had incurred during the proceedings (see the affidavit of Mr Hutton affirmed on 13 July 2022 and filed on 14 July 2022, the “Hutton affidavit”, p 4).
That email provided as follows:
Dear Sir/Madam
AAY22 - v - Minister for Immigration, Citizenship, Migrant Seivices and Multicultural Affairs & Anor MLG13/2022
Consent Orders
We represent the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs in this matter.
We have received instructions to withdraw these proceedings on the basis that the Administrative Appeals Tribunal (Tribunal) fell into error when making its decision. This means that your matter will be remitted to the Tribunal to be heard and re-determined according to law.
We invite you to review the attached proposed consent orders explaining the details of this error.
We note that we have not included an amount of costs in Order 3 of the proposed orders. We would be grateful if you could provide evidence of any legal costs you have incurred during these proceedings (for example, the receipt for the filing fee you paid when lodging your application with the Federal Circuit Court). Once you have provided this evidence, we will consider and discuss the amount of costs with you. If an agreement is reached, we will amend the orders and send them back for your signature.
Attached to the above email were proposed consent orders that provided as follows (see Hutton affidavit, pp5-6):
THE COURT ORDERS, BY CONSENT, THAT:
1.A writ of certiorari issue directed to the Administrative Appeals Tribunal quashing the decision of the Administrative Appeals Tribunal dated 25 November 2021.
2.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 14 July 2017 according to law.
3. The first respondent pay the applicant's costs fixed in the sum of X.
STATEMENT ACCOMPANYING CONSENT ORDERS
THE COURT ORDERS, BY CONSENT, THAT:
The First Respondent concedes that the decision of the second respondent is affected by jurisdictional error because the second respondent failed to consider information it sought and received pursuant to section 424 of the Migration Act 1958 (Cth), being the applicant's marriage certificate, in breach of s 424(1) of the Act. The Tribunal made a critical error of fact that this information had not been provided to the Tribunal, when in fact it had been provided. The first respondent accepts that this error was material as if the second respondent had considered the marriage certificate as it was obliged to do, it would have accepted that the applicant had been married to a Muslim woman in the past and this could have resulted in a different finding as to whether the applicant had breached Sharia law and faced consequences on return to Malaysia (see Tribunal decision at [56)).
On 5 May 2022, Mr Hutton sent a further email to the applicant again attaching proposed consent (as detailed above), seeking that he review the orders and provide evidence of any costs he incurred (see Hutton affidavit, p 8).
On 24 June 2022, the Court’s Migration Team was contacted via email by Mr Hutton.
In that email, Mr Hutton advised as follows:
We have been instructed to concede the matter on the basis that the decision of the Second Respondent is affected by jurisdictional error because the Second Respondent failed to consider information it sought and received pursuant to section 424 of the Migration Act 1958 (Cth), being the applicant’s marriage certificate, in breach of s 424(1) of the Act. The Second Respondent made a critical error of fact that this information had not been provided to the Second Respondent, when in fact it had been provided. The First Respondent accepts that this error was material as if the second respondent had considered the marriage certificate as it was obliged to do, it would have accepted that the applicant had been married to a Muslim woman in the past and this could have resulted in a different finding as to whether the applicant had breached Sharia law and faced consequences on return to Malaysia (see Tribunal decision at [56]).
The orders are favourable to the applicant and provide him with the relief sought in the application.
On 29 March 2022 we put proposed consent orders to the applicant for his review and return. The correspondence was sent to the email address provided for in the originating application
On 11 April 2022, we called the applicant seeking that he advise us of his costs in order to progress the consent orders, which he agreed to do. On 5 May 2022 we sent a reminder email to the applicant to which he did not respond.
In the above circumstances, we are instructed to request the Court make the orders in the absence of the applicant’s consent. Please note that compared to the version sent to the applicant, we have removed the order as to costs in favour of the applicant (in a “to be determined” amount) in circumstances where the applicant has not advised us of any costs incurred with respect to this proceeding.
On 14 July 2022, the Hutton affidavit was filed on behalf of the Minister. That affidavit (as outlined above) was affirmed by Mr Hutton on 13 July 2022 and annexed the email correspondence from Mr Hutton to the applicant dated 29 March 2022 and 5 May 2022 referred to above.
On 2 August 2022, a member of the Court’s Migration Team spoke with the applicant by telephone about the matter but noted that his English proficiency was “limited”. The Migration Team determined that the applicant would benefit from the assistance of an interpreter.
On 3 August 2022, a directions hearing was held before Registrar Carney of this Court. Unfortunately, the applicant did not appear at that directions hearing. In this regard, the Court notes that on 11 July 2022, a member of the Court’s Migration Team contacted the parties and advised that, in light of the correspondence from Mr Hutton (dated 24 June 2022), the matter had been listed for a directions hearing before a Registrar of this Court on 3 August 2022. The parties were also provided with instructions on how to appear by telephone.
Following the directions hearing, my Chambers notified the parties that the matter would be listed for a hearing before this Court on 4 August 2022 to discuss the Minister’s proposed consent orders. The parties were given instructions on how to attend by video link. That correspondence, together with correspondence between Mr Hutton and the Court’s Migration Team, was tendered and referenced as Exhibit 1.
As outlined above, when the matter came before the Court (on 4 August 2022), there was no appearance by or for the applicant. Mr Hutton appeared for the Minister at that hearing. An interpreter in the Malay language had been engaged but was not, in the circumstances, required.
Mr Hutton took the Court through correspondence from his office to the applicant regarding the proposed consent orders (as annexed to his affidavit, which was taken as read an in evidence).
In addition to the proposed orders, Mr Hutton requested additional orders as follows:
The name of the first respondent be amended to read the “Minister for Immigration, Citizenship and Multicultural Affairs”.
There be no order as to costs.
The Court has reviewed the Court Book and the decision of the second respondent (the “Tribunal”) and is satisfied that there was a jurisdictional error (as identified by the Minister) on the part of the Tribunal and that it is appropriate for the matter to be remitted to the Tribunal for reconsideration.
Relevantly, the Court notes that the decision of the Tribunal is affected by jurisdictional error because the Tribunal failed to consider information it sought and received pursuant to section 424 of the Act (being the applicant’s marriage certificate) in breach of s 424(1) of the Act. The Tribunal made a critical error of fact that this information had not been provided to the Tribunal when, in fact, it had been so provided. This error was material because, if the Tribunal had considered the marriage certificate (as it was obliged to do), it would have accepted that the applicant had been married to a Muslim woman in the past. This might have resulted in a different finding as to whether the applicant had breached Sharia law and faced consequences on return to Malaysia. In this regard, the Court references the Tribunal’s decision at [56].
In relation to costs (and contrary to the Minister’s proposed order), the Court determined that was preferable to preserve the applicant’s rights in relation to costs. In this regard, the Court notes the difficulties the Minister had contacting the applicant and the fact that applicant is not fluent in the English language and does not appear to have legal assistance. In the circumstances, the Court made an order for the Minister to pay the applicant’s costs he is entitled to as a self-represented litigant (to the extent that any costs are indeed payable).
CONCLUSION
In the circumstances, the Court made orders remitting the matter to the Tribunal for reconsideration (noting the details of the jurisdictional error on the part of the Tribunal).
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 11 August 2022
0
0