Abb17 v Minister for Immigration

[2018] FCCA 1466

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABB17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1466

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant to the applicant a Protection visa – applicant requires a 15 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – Minister for Immigration did not oppose the making of an order for an extension of time under s.477(2) of the Migration Act 1958 (Cth) – extension of time granted – applicant did not attend scheduled hearing before Administrative Appeals Tribunal – decision of Administrative Appeals Tribunal to exercise its legal and discretionary entitlement to dismiss the application for review without any further consideration under s.426A of the Migration Act 1958 (Cth) did not lack an intelligible justification and was not irrational or legally unreasonable in the circumstances – application for judicial review dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.2A

Migration Act 1958 (Cth), ss.414, 425, 425A, 426A, 426B, 441A, 441C, 427
Migration Regulations 1994 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365
Sullivan v Department of Transport (1978) 20 ALR 323

Applicant: ABB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 24 of 2017

Judgment of: Judge Dowdy

Hearing date: 4 August 2017

Delivered at: Sydney

Delivered on: 8 June 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr T. Hillyard

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. Grant leave to the Applicant to amend the Application filed in this Court on 5 January 2017 so as to substitute the date of “16 November 2016” for “1 December 2016” to the intent of identifying that the decision of the Administrative Appeals Tribunal, which he seeks to quash and have redetermined, is its decision of 16 November 2016 under s.426A(1A)(b) of the Migration Act 1958 (Cth).

2. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the Applicant to file his Application in this Court seeking relief under s.476 in relation to the decision of the Administrative Appeals Tribunal dated 16 November 2016 to dismiss his application to the Tribunal under s.426A(1A)(b) be extended up to 5 January 2017.

3. The Application filed in this Court on 5 January 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 24 of 2017

ABB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Malaysia of Chinese ethnicity aged 36 years, having been born on 10 October 1981.

2. By Application filed in this Court on 5 January 2017  the Applicant seeks:

   a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of 15 days outside the time limit prescribed by s.477(1) for him to make his substantive application to this Court under s.476(1); and

   b)to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 16 November 2016 dismissing the application for review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 February 2016 refusing to grant to him a Protection (Class XA) visa (Protection visa).

3. At the commencement of the hearing in this Court on 4 August 2017 it was indicated by Mr Hillyard, who appeared for the Minister, that the Minister did not oppose the making of an order for an extension of time under s.477(2) of the Act in relation to the decision of the Tribunal dated 16 November 2016. Accordingly, in the circumstances I was prepared to be satisfied that it was necessary in the interests of the administration of justice to make that order and did so.

Background and Claims to Protection

1. The Applicant arrived in Australia on 6 September 2015 on an Electronic Travel Authority (Class UD) (Subclass 601) visa and on 4 December 2015 he applied for the Protection visa.

2. In a statement forming part of his Protection visa application the Applicant claimed in substance that:

   a)in Malaysia he had been operating a business of installing cool rooms since 2013 but it was difficult for Chinese to do business in Malaysia. The police blackmailed him on the basis of an assertion that he was “breaking rules” and gangsters often demanded money from him at the time of his installation of cool rooms;

   b)he came to know a man called Aziman who wanted him to build a large cool room and to satisfy this order the Applicant applied for a loan of RM 70,000 to fund the job, but failed to obtain the loan. Accordingly the Applicant was forced to borrow from a financial company at a monthly interest rate of 6%. The Applicant completed the cool room for Aziman but only a part payment of the price was made by him to the Applicant. The Applicant found a lawyer to sue Aziman but the Judge covered up for Aziman and he could not get paid;

   c)then Aziman asked him to sell drugs but he refused. He was subsequently stopped by police who, whilst the police did not find drugs in his car, still fined him RM 500 for making a telephone call and threatened that they would detain the Applicant for 24 hours if he did not pay the fine;

   d)he suspected that Aziman was colluding with the police for revenge. He was scared and short of cashflow and could not continue his business;

   e)he still owed a lot of money to the finance company so representatives of that company would often come to his home and threaten to kill him if he did not repay the money; and

   f)the Applicant “felt extremely unsecure” if he continued to stay in Malaysia.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of the Delegate

1. By his Protection Visa Assessment dated 23 February 2016 the Delegate refused to grant a Protection visa to the Applicant as he was not satisfied that the Applicant was a refugee as defined by s.5H(1) of the Act or that there was a real risk that the Applicant would suffer significant harm if he returned to Malaysia.

2. The Delegate summarised the Applicant’s claims to protection and for the purposes of the Refugee Convention criterion concluded that the Applicant’s claim of fear of harm was on account of the non-payment of a debt, rather than for any of the reasons set out in s.5J(1)(a) of the Act.

3. In relation to the complementary protection criterion the Delegate, having considered the Applicant’s claims and country information, concluded that if the Applicant went back to Malaysia he could reasonably expect to obtain protection from the Malaysian authorities, such that there would not be a real risk of him suffering significant harm.

4. Accordingly, the Delegate was not satisfied that the Applicant was a person to whom Australia had protection obligations under s.36 of the Act and refused to grant a Protection visa to him.

Application for Merits Review to the Tribunal

1. The Applicant lodged an application for merits review with the Tribunal on 23 March 2016. In his review application to the Tribunal he provided his email address for the purpose of receiving correspondence from the Tribunal.

2. Section 425(1) of the Act requires that the Tribunal must invite an applicant to appear before it (giving notice of the day, time and place under s.425A(1)) in order to give evidence and present arguments relating to the issues arising from the Delegate’s decision under review. The Tribunal satisfied its obligation under s.425(1) by transmitting a letter dated 26 October 2016 to the email address which the Applicant had given and therefore complied with s.441A(5)(b) as required by s.425A(2)(a). This letter invited him to appear before the Tribunal on 16 November 2016 at 9.30am, having also advised that on the material before the Tribunal it was unable to make a favourable decision. This letter also attached a Response to Hearing Invitation. The letter was taken to have been received by the Applicant on 26 October 2016 by force of s.441C(5). There is no evidence before me that the Applicant completed and returned the Response to Hearing Invitation to the Tribunal.

3. The Applicant did not appear before the Tribunal on 16 November 2016 at 9.30am or at all. That non-appearance enlivened the Tribunal’s discretion under s.426A(1A) to either proceed to make a decision on the Applicant’s review application or to dismiss the review application without any further consideration. The Tribunal decided to take this latter course.

4. On 16 November 2016 the Tribunal under s.426B(5) of the Act forwarded a letter of that date to the Applicant’s email address, which notified the Applicant that he had failed to attend the scheduled hearing on that date and that the Tribunal had decided to dismiss his application for review. By so sending this letter to the Applicant’s email address the Tribunal complied with s.441A(5)(b). It was taken to be received by the Applicant on 16 November 2016 by force of s.441C(5). The letter went on to advise the Applicant that it was open to him to apply in writing to the Tribunal for reinstatement of his merits review application by 30 November 2016 and that any such reinstatement application should set out why he had failed to appear at the hearing and provide any other information which the Applicant would want the Tribunal to take into consideration when deciding whether any such reinstatement application should be granted. This letter attached the Tribunal’s Statement of Non-Appearance Decision of 16 November 2016 and an Information Statement concerning a reinstatement application. I note that I am satisfied that the Tribunal complied with s.426B(5)(b) and (6) of the Act by forwarding its letter of 16 November 2016 and its attachments to the Applicant’s nominated email address in accordance with s.441A(5)(b).

5. The Applicant did not respond to the Tribunal’s correspondence of 16 November 2016 or make any reinstatement application or otherwise contact the Tribunal. Accordingly, by Decision Record of 1 December 2016 the Tribunal, as it was bound to do under s.426A(1E), confirmed its decision of 16 November 2016 to dismiss the merits review application and thereby under s.426A(1F) the decision of the Delegate under review was taken to be affirmed. I note for completeness that under s.426A(1D)(a) if a review application is reinstated it is then taken as never having been dismissed.

6. I find on the evidence that the Applicant was properly invited to attend a hearing before the Tribunal by its s.425(1) letter of 26 October 2016 but that the Applicant failed to attend that hearing and that the Tribunal was accordingly empowered to dismiss the application for review on the basis of non-appearance. I further find on the evidence that the Tribunal properly notified the Applicants of its non-appearance decision pursuant to s.426B(5) of the Act and that the Applicant failed to make an application within the permitted 14 day period or at all.

7. I further find with respect to the invitation dated 26 October 2016 under s.425A(3) of the Act to the hearing on 16 November 2016 that it complied with reg.4.35D(3)(b)(i) of the Migration Regulations 1994 (Cth) in that it gave more than 14 days’ notice of the hearing scheduled for that date. Similarly, the letter of 16 November 2016 inviting any application for reinstatement to be made by 30 November 2016 complied with s.426B(5) and (6) in giving 14 days to do so after the Applicant received notice of the written statement of dismissal.

Proposed Grounds of Attack on Tribunal Decision in this Court

1. The substantive Grounds relied upon by the Applicant are as follows:

   There exist jurisdictional errors.

   1.There exist procedural error to dismiss my application which causes my claims unconsidered.

   2. The Tribunal does not consider I would be harmed by loan shark if I return to Malaysia. Thus, law is not properly applied.

   3. Tribunal does not consider discrimination against ethnic Chinese in Malaysia.

2. I take Ground 1 as attacking as legally unreasonable the Tribunal’s decision on 16 November 2016 to dismiss the application for review because of the non-appearance of the Applicant at the hearing and implicitly as contending that the Tribunal should have on that day adjourned the hearing or alternatively proceeded to make a decision on the review and consider his claims in his absence under s.426A(1A)(a) of the Act. I note that the exercise of a discretionary power of a kind given by s.426A to the Tribunal is subject to judicial scrutiny in order to determine whether it was exercised in a legally unreasonable way: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Under s.427(1)(b) of the Act, the Tribunal has the power to adjourn a review from time to time. Further, the Tribunal is exhorted by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a way that is “fair, just, economical, informal and quick”. However, these discretionary powers to adjourn a hearing, to proceed with a hearing, and to operate economically, informally and quickly must be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.414 of the Act to review relevant decisions and to give the relevant applicant a meaningful opportunity or a real chance to appear and to present evidence and arguments pursuant to the invitation extended under s.425.

3. I further note that in my view the only decision which is open to the Applicant to attack in this proceeding is the Tribunal’s decision on 16 November 2016 to dismiss his application for review. This is because once the Tribunal had so done, it was bound under s.426A(1E) of the Act to dismiss the application for review once the Applicant did not apply for reinstatement within the prescribed period of 14 days. Accordingly, Grounds 2 and 3 are not maintainable, as the Tribunal never considered the matters complained of in the Grounds.

Consideration

Ground 1

1. Accordingly, I turn to Ground 1 and note that at the first directions hearing in this Court on 10 March 2017, when the Applicant appeared and procedural orders were made to get the matter ready for hearing on the appointed hearing day of 4 August 2017, I specifically advised the Applicant in the following terms:

   HIS HONOUR:             Mr Interpreter, can you say this to the applicant, he – the Tribunal says that it dismissed the application – his application because he didn’t turn up at the Tribunal to give evidence and present arguments.  He hasn’t given any explanation of that to the Court so far, that is why he didn’t turn up, and he may wish to do so.  And order 4 of the short minutes that he has agreed to provide him with the means and opportunity to do so.  You’ve explained that – translated that to him, sir?

   THE INTERPRETER:  Yes, your Honour.

   Order 4 as made on 10 March 2017 required that the Applicant file and serve any affidavit evidence on which he intended to rely by 5 May 2017.

2. However, no further affidavit evidence was filed by the Applicant. At the hearing on 4 August 2017 the Applicant stated that he did not attend the Tribunal hearing on 16 November 2016 because: “I didn’t go because I didn’t understand the procedure”. In relation to the dismissal of his application for review by the Tribunal on 16 November 2016 he stated:

   THE INTERPRETER:  So in relation to the decision on 16 November, I missed the email.  So when I did find the decision, there was already some time in December.  That is why I missed the opportunity.

   HIS HONOUR:                  The opportunity to seek to reinstate – is that what he’s saying?

   THE INTERPRETER:     Yes.  When I checked, I realised I already missed the deadline.

3. For the purposes of this proceeding I will take these statements of the Applicant at the hearing as actual evidence in the proceeding.

4. I do not consider that the explanation given by the Applicant of his failure to attend or to lodge a reinstatement application is a reasonable one. His explanation seems to turn on his failure to attend to the reading of emails sent to him by the Tribunal. However, the appointed Tribunal hearing date of 16 November 2016 was, in the words of Hill J in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 at 102 [14] “one of the most important appointments in [his] life”. The Applicant was under a personal responsibility to attend in aid of his application for review if he was not precluded for good reason. As Barker J in Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365 said at 372 [56], referring to proceedings before the Migration Review Tribunal:

   [56]What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.

5. In my view the Tribunal’s exercise of its legal and discretionary entitlement under s.426A(1A)(b) of the Act to dismiss the application for review without any further consideration was not legally unreasonable, nor did the Tribunal fail to afford procedural fairness to the Applicant, in particular because eo instanti it afforded him the opportunity to seek reinstatement within 14 days. The Tribunal complied with the Act in issuing the invitation to the Tribunal hearing on 16 November 2016 and the Applicant was simply inattentive to that invitation. He never made any submissions to the Tribunal in support of his application for review although invited to do so by a letter from the Tribunal dated 24 March 2016. He never evinced that he was keenly pursuing his application for review. Even when the Tribunal afforded him a further opportunity of having the Tribunal hear his application for review by way of reinstatement he remained inattentive. At no point did he contact the Tribunal to explain why he had not appeared on 16 November 2016 or exercised his right to seek reinstatement. In my view the Tribunal simply could not properly administer its case load if applicants could act in the way the Applicant has done with respect to his application for review. As Deane J pointed out in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, the Tribunal must give any applicant a reasonable opportunity to present his or her case but there is no obligation imposed upon the Tribunal to engage in “the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”. In my view the Tribunal’s decision to dismiss the application for review was not “arbitrary” or “irrational” or lacking an “evident and intelligible justification” and the Applicant has failed to establish that it was affected by jurisdictional error.    

Conclusion

1. In my view the Applicant has failed to establish that the decision of the Tribunal on 16 November 2016 was affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  8 June 2018