Adh20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 624
•31 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ADH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 624
File number(s): SYG 60 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 31 March 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (class XA) visas – whether procedural error exists – legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth). Cases cited: Parsons v Martin (1984) 5 FCR 235
SZASD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 472
Number of paragraphs: 32 Date of last submission/s: 23 March 2021 Date of hearing: 23 March 2021 Place: Parramatta Solicitor for the Applicants: The Applicant appeared in person, aided by an Interpreter. Solicitor for the Respondents: Ms Strugnell appeared on behalf of the First Respondent. ORDERS
SYG 60 of 2020 BETWEEN: ADH20
First Applicant
ADI20
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
31 MARCH 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicants’ are to jointly and severally pay the First Respondent’s costs fixed in the amount of $5600.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicants’ are citizens of Malaysia who arrived in Australia on 23 March 2018. On 12 May 2018, the first applicant applied for Protection (class XA) visas. In that application, the first applicant provided an email address of [email protected] (note that this address is partially redacted to preserve the anonymity of the applicants’).
On 25 October 2018, a delegate of the Minister for Immigration and Border Protection (“the delegate”), refused to grant the applicants’ their protection visas. That notification was sent to the email address shown above.
The applicant sought merits review of the delegate’s decision by the Administrative Appeals Tribunal (“the Tribunal”) by application dated 14 November 2018. That application listed the applicants’ nominated email address as the one shown above.
On 3 June 2019, the applicants’ sent an email to the Tribunal, from the email address shown above, seeking to withdraw the application for review and attaching two completed “Withdrawal of Application for Migration or Refugee Division” forms, in respect of each applicant. On 12 June 2019, the Tribunal wrote to the applicants’ by email at the above address, notifying them that the withdrawal of the applications had been successful.
On 3 July 2019, the applicants made a new application for review of the delegates decision (“the second Tribunal application”). On that application form, the applicants’ provided a different email address being [email protected], (note again, that the address has been partially redacted).
On 18 July 2019, the applicants’ sent an email to the Tribunal from the first nominated email address quoting the case number of the first Tribunal application, and asserting that an agency had informed them that they had “submitted the AAT on our behalf and request payment, but we did not ask anyone to submit AAT about our application because we would like to cancel our application and we will move to another country”.
On 1 October 2019, the Tribunal wrote to the applicants’ in relation to the second application, inviting them to comment on the validity of their applications for review. No response was received. On 1 November 2019, the first applicant wrote to the Tribunal by email, from the first nominated email address, attaching withdrawal of application forms in respect of both applicants’.
On 5 December 2019 the Tribunal made its decision, finding that it had no jurisdiction to review the second Tribunal application
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision record is brief and to the point. The Tribunal notes that on 3 July 2019, it received an application for a review of a decision of the delegate, dated 25 October 2018, to refuse a protection visa. Material before the Tribunal indicated that a review of the decision of 25 October 2018 had been made and finalised.
The Tribunal wrote to the applicants’ on 1 October 2019, to advise of this jurisdictional issue and to seek comment. On 2 November 2019, the applicants’ submitted a formal Notice of Withdrawal, of their purported second review application of 3 July 2019, indicating that they were preparing to return to Malaysia.
On the evidence before the Tribunal, the application for review was not properly made, and the Tribunal did not have jurisdiction to hear the matter.
GROUNDS OF JUDICIAL REVIEW
The applicants’ ground of judicial review is contained in an Initiating Application filed with the Court on 8 January 2020. The applicants’ ground of judicial review is as follows, verbatim:
Ground One
There exists procedural error.
Tribunal requests that all communications must be through recorded email address.
But Tribunal did not follow this rule. It was clear that withdrawal of my review application was not sent through my recorded email address: [email protected]. And I did not request Tribunal to change my email address.
Withdrawal of review application was not lodged by myself. Tribunal did not check whether the email was sent through the recorded email address and should not accept that application.
THE APPLICANT’S SUBMISSIONS
The first applicant appeared before the Court unrepresented. The first applicant was assisted by a Mandarin Interpreter. Prior to the commencement of the hearing, the Court ensured that the first applicant was in possession of the relevant Court Books, and that the first respondent’s written submissions had been interpreted to him.
At the commencement of the hearing, the Court carefully explained what judicial review entailed, as compared to merits review. The Court also explained the procedure by which, the hearing would be undertaken.
Despite Court orders made on 13 February 2020, the applicants’ have failed to:
1. File and serve any amended application giving complete particulars of each ground a review on or before 7 May 2020.
2. File and serve any affidavit containing additional evidence to be relied upon by 7 May 2020; and
3. File and serve written submissions no longer than 10 pages and any list of authorities by 14 days prior to the hearing date (being 23 March 2021).
In an affidavit affirmed on 19 December 2019, the first applicant states as follows:
1. I was harmed in Malaysia.
2. I worried about my safety.
3. I am scared of returning to Malaysia.
The first applicant told the Court that he was employed as a fruit picker by a company. The supervisor at the place he worked at, advised him to lodge a protection visa application in order to extend his stay, working in Australia. All immigration matters were handled by the supervisor.
The first applicant stated that he had to pay fees to the supervisor to handle the immigration matters on his behalf. The first applicant claims that he never asked for the application to the Tribunal to be withdrawn. The first applicant was unable to explain how his and the second applicant’s signatures appeared on the first withdrawal of application forms, although he acknowledged that they were his signature and that of his son. The applicant claims that he was the victim of third party fraud.
The first applicant was asked by the Court if he had any proof that he was the victim of fraud. The first applicant pointed to the fact that the address listed for him on the withdrawal of application form was an address in Victoria, when at the time he was living in Lidcombe in NSW.
The first applicant was asked if he would be able to provide any additional evidence if the matter was adjourned. The first applicant stated that he would not be able to do so, and that all he could say is what happened.
Following the completion of the first respondent’s oral submissions, the first applicant was again asked if he wished to state anything in reply. The first applicant stated that he just wished to reiterate that he did not put in the withdrawal of application forms and wanted to stay in Australia. The first applicant did not wish to say anything further.
THE FIRST RESPONDENT’S SUBMISSIONS
The legal representative for the first respondent submitted that the ground of judicial review, such as it is, is misconceived. On the first Tribunal application, the applicants’ recorded their contact email address as the first nominated email address being [email protected]. That is the email address from which the email attaching the withdrawal of applications’ was sent on 3 June 2019. In those circumstances, it was submitted that the Tribunal was bound to accept the withdrawal applications’.
In relation to the second Tribunal application, it is the case the applicants’ provided the email address [email protected], and that another attempt was made to withdraw the second application from the first nominated email address. However, the Tribunal correctly found that there was no valid application to withdraw and disregarded the second withdrawal request.
It was submitted that the Tribunal was correct to conclude that it did not have jurisdiction to review the delegate’s decision in relation to the second Tribunal application.
It was further submitted that there is a common law right in relation to the Tribunal review, for an applicant to withdraw any application they have made: (see SZASD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 472 at [10], and Parsons v Martin (1984) 5 FCR 235 at [241]).
From the point that the applicants’ withdrew the first Tribunal application, the Tribunal was functus officio and the Tribunal had no further power to deal with or determine the applicants’ application for review.
Counsel for the first respondent properly conceded that there were some strange aspects to the case, in terms of the differing email addresses and the fact that the applicants’ appeared to be residing in NSW whereas the withdrawal form shows the applicants’ address as Victoria. However, in the absence of substantive proof, there was no more than a possibility of third party fraud and the Court was entitled to rely upon the documents before the Court which clearly showed that the first application was withdrawn.
CONSIDERATION.
The Court is satisfied, based on the material before it contained within the Court Book, that the first application for review by the Tribunal was validly withdrawn by the applicants’ as a result of the email sent on 3 June 2019 from the first email address and attaching two completed “Withdrawal of Application for Migration and Refugee Division” forms in respect of each applicant. The Court notes that the first applicant acknowledges that his signature and that of the second applicant appear on those forms.
The Court is satisfied that this withdrawal finalised any right of review by the Tribunal, once the withdrawal was accepted of the applicants in respect of the delegate’s decision to refuse them their protection visas. While the Court notes the claims by the first applicant that he did not send in the withdrawal form, he acknowledges that his signature appeared on the withdrawal form along with that of his son. While the Court acknowledges the possibility of third part fraud, there is insufficient evidence before the Court to be satisfied that this took place. The first applicant acknowledges that he is unable to produce any additional evidence. In these circumstances the Court is entitled to rely upon the documentary evidence before it.
The purported second application for review by the Tribunal was therefore nullity, in that the Tribunal was correct to conclude that it had no jurisdiction to hear the matter. There was no procedural unfairness in the way that the Tribunal made this decision, having invited the applicants’ to comment on the issue prior to making its decision.
No material has been provided to the Court which would prove to the requisite degree that there has been any fraud by a third-party, such that the initial applications’ to withdraw were not validly submitted. The grounds of judicial review have no merit.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 31 March 2021
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