ADK18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 910
Federal Circuit and Family Court of Australia
(DIVISION 2)
ADK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 910
File number: MLG 69 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 4 November 2022 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the applicants were properly invited to appear before the Tribunal – whether the Tribunal’s decision to exercise its discretion to dismiss the matter for non-appearance was reasonable – whether the Tribunal’s decision not to reinstate the application was illogical or unreasonable – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 425, 425A, 426A, 441A, 441C and 476
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 31 October 2022 Place: Perth Applicants: In person Counsel for the First Respondent: Mr T Lettenmaier Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 69 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADK18
First Applicant
ADL18
Second 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 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application (as amended on 31 October 2022) be dismissed.
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:
Background
The applicants in this matter are sisters. Both are citizens of Malaysia (Court Book (“CB”) 13, 50 & 74-75). They first arrived in Australia in February 2017 (CB 20 & 57) as the holders of Electronic Travel Authority (Class UD) (Subclass 601) visas (CB 80).
On 21 April 2017, the second applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-73). The first applicant was included in that visa application as a member of the same family unit. Attached to that visa application were copies of the applicants’ passports (CB 74-75). In their visa application, the applicants made identical protection claims. They both stated that they feared harm from their step-father who had assaulted them and had “continuously” tried to “take advantage of them” (CB 31-33 & 68-70).
On 1 September 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 79-88). The delegate accepted that the applicants may have “experienced difficulties in Malaysia as a result of their step-father’s treatment” but found that the applicants could obtain state protection (CB 82).
On 12 October 2017, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 89-90).
The Tribunal initially had concerns about the validity of the review application on the basis that it had been filed outside of the requisite 28-day time period and invited the applicants to comment in that regard (CB 92-94). Ultimately, however, the Tribunal determined that the notification letter provided by the then Department of Immigration and Border Protection (the “Department”) was defective. On that basis, the Tribunal accepted the applicants’ review application as valid and proceeded on that basis (CB 99).
On 29 November 2017, the Tribunal invited the applicants to attend a hearing before it on 20 December 2017 (CB 96-98). Relevantly, the invitation letter sent to the applicants stated (CB 98):
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend 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. 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.
On 13 December 2017 and 19 December 2017, the Tribunal sent SMS hearing reminders to the applicants. It appears those SMS reminders failed (CB 99-100).
The applicants did not appear at the hearing on 20 December 2017 (CB 101-103).
On 20 December 2017, the Tribunal dismissed the application for review for non-appearance pursuant to s 426(1A)(b) of the Act (the “Non-Appearance Decision”) (CB 107). The Tribunal found that “no satisfactory reason” had been given by the applicants for their failure to appear at the scheduled hearing.
The Non-Appearance Decision was sent to the first applicant by email on 21 December 2017 (CB 104). It was sent with a covering letter which, relevantly, provided (CB 105):
You may apply to us, in writing, for reinstatement of the application by 4 January 2018. 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 29 December 2017, the applicants sent an email to the Tribunal seeking reinstatement of their application (CB 108-109). In that email correspondence, the applicants explained that they were “scared” to attend the hearing because they were unsure of their visa status (CB 108).
On 5 January 2018, the Tribunal confirmed the decision to dismiss the applicants’ review application (the “Confirmation Decision”) (CB 112-114). The applicants were sent a copy of the Confirmation Decision via email on 5 January 2018 (CB 110-111).
On 11 January 2018, the applicants applied to this Court for judicial review of the Tribunal’s decision (CB 115-120). The applicants filed an affidavit (affirmed by the first applicant) annexing a copy of the Confirmation Decision in support of that application (CB 121-123). The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
The Tribunal’s decisions
Non-Appearance Decision
In full, the Tribunal’s reasons in relation to the Non-Appearance Decision dated 20 December 2017 provide (CB 107):
1.The review applicants were invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 20 December 2017. 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. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2.The review applicants did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicants about the hearing. No satisfactory reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
Confirmation Decision
In full, the Tribunal’s reasons in relation to the Confirmation Decision dated 5 January 2018 provide (CB 112-114).
APPLICATION FOR REVIEW
1.This is an application for review of decisions made by a delegate of the Minister for Immigration on 1 September 2017 to refuse to grant the visa applicants protection visas under the Migration Act 1958 (the Act).
2.On 20 December 2017 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicants were 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 with s.4268(5). The applicants were 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.The applicants applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application. The request for reinstatement was made in the following terms:
I am writing in relation to reinstatement application for protection visas.
On 20/12/2017 we are not turn up to attend the hearing to give the evidence and present arguments relating to the issues arising in our case.
Case No:[omitted]
As we are failed to attend the scheduled hearing, we want to reinstatement the application to consideration to granted protection Visa.
In relation of the matter. We are want to explain why and what the reason cause of the issues make us unable to attend the hearing on 20/12/2017 schedule by AAT member.
1) on 03/12/2017 we are notified by the officer of department of Centrelink that our visa was expired once we are trying to apply for Medicare and the officer ask us to do checking with Department of Immigration and Border Protection.
2) We would like to explain that our VEVO to do checking for visa entitlement was unable to open since the Bridging Visa A was granted to us on 05/5/2017
3) On 05/10/2017 we are went to meet a lawyer to try to get solutions in regard of our visa was expired due failed to apply for the AAT within 28 days after decision to refuse grant protection Visa.
4) After do the conversation and discussion the Lawyers was ask us to paid for the cost of AUD2000 for solve the matter and as what we know and aware the Lawyers was only help us to apply for Administrative Appeals Tribunal.
5) On 29/11/2017 we are get invitation to attend the hearing on 20/12/2017 but since we are facing a problem with the Visa and we don't know about status of our Visa we are pretty scared to went to attend the hearing schedule by AAT member.
6) On 21/12/2017 we get a email from AATwas notified to dismiss of our protection Visa due failed to attend hearing on 20/12/2017.
7) After was thinking carefully we are decided to not refer at all to the lawyers we are hired before to solve of our problem related of Visa matter.
8) We are know that is are our mistakes because we are decided not to attend the hearing just without refer to any people for advices.
9) We are accountabilities for paid any cost for the previous hearing schedule by AAT due of our negligence and careless.
We are hope that our application to reinstatement the application get approval by AAT member and we will take that all the thing was happen as a best lesson to avoiding similar incidents happen again in future.
Any result decide by AAT in relation of this application for reinstatement the Protection Visa we will accept due we are know and aware that is under term and conditions to follow.
Lastly, we want to wish fully of thank to the AA T member since given us a change to writing this letter to give the explanation. Any inconvenience cause is much regret.
Thank You,
[Omitted] & [Omitted]
5.The applicants are claiming that they were afraid to attend the hearing as they were not aware of their visa status. However, the applicants had a range of options available to them which would have assured them of their visa status and that in any event their visa status or otherwise would not have a direct bearing on their appearance at the Tribunal and review of their cases. They had, they state, engaged a lawyer, who they could have consulted about these matters, they could have telephoned the Department of Immigration, or could have checked these matters with the Tribunal, all of which they did not do, and concede that they did not do. They concede that they received the invitation to hearing, but chose not to attend. ·
6.In these circumstances I do not consider it appropriate to reinstate the applications – the applicants have made their own choices about seeking advice to attend the hearing and did not attend the hearing despite receiving the invitation to attend. They had access to a range of straightforward options which would have allowed them to become aware of their situation and did not take any of them.
7.The decision to dismiss the application is confirmed. In these circumstances, the decisions under review are taken to be affirmed.
DECISION
8. The Tribunal confirms the decision to dismiss the application.
Application to this Court
Under the heading “grounds of review”, the application for judicial review filed by the applicants on 11 January 2018 provides eight paragraphs as follows (without alteration):
1)We want to get apply at Federal Circuit Court because our application for protection visa was dismiss by Administrative Appeals Tribunal on 5/01/2018.
2)On 21/04/2017 both of us make a application to apply protection visa from Department of Immigration and Border Protection. After that, we was been granted for protection visa on 5/05/2017.
3)However, due of our careless and negligent we was not realize the notification send by Department of Immigration and Border Protection to refused our protection visa.
4)Then, Because we are not received the email send by Department Immigration and Border Protection we are failed to apply for the AAT with the actual time given (28 days). We already do check with DIBP in regard of the matter and according of them the email was already send to us by the email address we provided delivery the application time.
5)We are unable to attend the hearing on 20/12/2017 as we pretty scared on that time regarding our visa status.
6)Since, we already hired a lawyer before but unable to solve the problem we was decided t reapplied the application with Federal Circuit Court with our self and we hope will get consideration to us for get back our protection visa.
7)We are very feel safe here and we don’t want to return back to our own country due we are facing problem with our step of father we really believe our step father will take advantage again to both of us if we return back.
8)Finally, we wanted to get re-applied at federal circuit court in regard all the matter was explain.
On 17 October 2018, procedural orders were made by Registrar Ryan of this Court giving the applicants an opportunity to file an amended application, any supporting affidavits, a supplementary court book and written submissions. Unfortunately, no additional materials were provided by or on behalf of the applicants.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicants on 11 January 2018, an amended Court Book numbering 123 pages (marked as Exhibit 1), written submissions filed by the Minister on 17 October 2022 and a Form MR20 (which was tendered by the Minister at the hearing of this matter on the basis that it had been inadvertently omitted from the Court Book) (marked as Exhibit 2).
The applicants appeared before this Court on 31 October 2022 without legal representation. The applicants were assisted at that hearing by an interpreter in the Malay and English languages. The Court confirmed with them that they had received copies of the amended Court Book and the Minister’s written submissions.
The Court also addressed what appeared to be “oversights” in the application for judicial review filed by the applicants.
In that regard, the Court noted that the application for judicial review filed by the applicants did not seek an order quashing the Tribunal’s decisions. As such, this Court’s jurisdiction under s 476 of the Act was not properly invoked.
The Court also noted that the application did not seek review of the Tribunal’s Non-Appearance Decision. The Court explained to the applicants that their judicial review application only related to the Tribunal’s Confirmation Decision.
With the agreement of the applicants, the Court made an order granting the applicants leave to orally amend their application for judicial review to include review of both the Non-Appearance Decision and the Confirmation Decision. The order also amended the application to seek that the Tribunal’s decisions be quashed.
This judgment thus considers whether the Tribunal fell into jurisdictional error in relation to both the Non-Appearance Decision and the Confirmation Decision.
Noting that the applicants were unrepresented, the Court gave them the opportunity to explain orally what they thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained to them that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, 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) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker ignores relevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (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 (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if 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.
Against this background, the applicants stated that they were unaware that their visas had been refused until they attempted to apply for Medicare. At that point, they contacted the Department about the status of their visas. The applicants also explained that they had not attended the Tribunal hearing because they were worried about the status of their visas.
The first applicant also conceded at the hearing that she may have overlooked or deleted the email from the Department (notifying them of the visa refusal) in error.
Consideration
Unfortunately, the applicants’ oral submissions do not raise any issue of jurisdictional error of the sort that this Court can address. Similarly, the applicants’ “grounds of review” simply set out a factual background for their matter and otherwise explain why they felt that they were unable to attend the Tribunal hearing. They do not raise any issues of jurisdictional error.
Noting, however, that the applicants do not have legal assistance, the Court will, in its duty to them as self-represented litigants, review the Tribunal’s decisions itself and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decisions: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
On that basis, the Court will assess the following potential issues:
(a)whether the applicants were properly invited to appear before the Tribunal;
(b)whether the Tribunal’s decision to exercise its discretion to dismiss the matter for non-appearance was reasonable; and
(c)whether the Tribunal’s decision not to reinstate the application was illogical or unreasonable.
Whether the applicants were properly invited to appear before the Tribunal
As outlined above, the applicants did not attend the Tribunal hearing which was scheduled to take place on 20 December 2017 (CB 101-103).
In those circumstances, the Tribunal dismissed the application for review and it did so pursuant to s 426A(1A)(b) of the Act.
Before considering whether the Tribunal erred by doing so, the Court must first consider whether the applicants were properly invited to appear before the Tribunal (as explained in the Court’s recent decision in ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744 (“ACN22”)).
The Tribunal was required to invite the applicants to attend a hearing before it pursuant to s 425 of the Act, which provides 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.
On 29 November 2017, the Tribunal invited the applicants (via email) to attend a hearing before it, scheduled to take place on 20 December 2017 (CB 96-98).
Section 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provides:
425A Notice of invitation to appear
(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.
Here, the invitation to attend the hearing:
(a)was addressed to the applicants (CB 97);
(b)clearly indicated the date, time and means by which the applicants could attend that hearing (being on 20 December 2017 at 9.30am (VIC time) and providing the applicants with the address for the Tribunal’s Melbourne registry) (CB 97): s 425A(1) of the Act;
(c)was sent to the applicants via email (a method approved by s 441A(5)(b) of the Act) to the applicants’ nominated email address on 29 November 2017 (CB 96) and, as a result of s 441C(5) of the Act, the applicants were taken to have received the notice at the end of that day: s 425A(2)(a) of the Act;
(d)was given to the applicants 21 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 applicants did not attend the hearing (CB 98): s 425A(4) of the Act.
For completeness, the Court notes that, 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 invitation was sent via email), the applicants are “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), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].
The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act. The applicants were properly invited to attend the hearing.
No error arises in this regard.
Whether the Tribunal’s decision to exercise its discretion to dismiss the matter for non-appearance was reasonable
As outlined by this Court in ACN22, before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (under s 425 of the Act) to appear before it. Further, ss 425 and 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 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.
As set out above, the Court is satisfied that the applicants in this matter were properly invited to appear at the Tribunal hearing as required by ss 425 and 425A of the Act.
As the applicants had been invited to attend a hearing, but failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section provides:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(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.
The applicants did not appear at the hearing on 20 December 2017. They do not dispute this.
The Tribunal then had two options open to it in the circumstances. 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 application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
In this matter, the Tribunal chose to dismiss the application without any further consideration (as it was entitled to do by virtue of s 426A(1A)(b) of the Act).
The Tribunal’s decision to exercise its powers in this regard is discretionary. As such, that decision must be made “reasonably”.
In the circumstances of this matter, the Court is satisfied that the Tribunal acted reasonably. Relevantly:
(a)the hearing invitation was sent to the applicants by email at their nominated email address and there was no evidence before the Tribunal to suggest that the applicants had not received that invitation (there was, for example, no email delivery failure notice received);
(b)after filing their review application with the Tribunal, the applicants did not engage or make contact with the Tribunal (until after their failure to attend the hearing);
(c)no further material had been provided to the Tribunal by the applicants in support of their review application;
(d)the applicants did not appear at the Tribunal hearing at the scheduled time of 9.30am (VIC time); and
(e)the Tribunal waited for 30 minutes (until 10.00am) before determining that the applicants were not going to appear at that hearing (CB 103).
The Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicants’ application pursuant to s 426A(1A)(b) of the Act.
No error arises in this regard.
Whether the Tribunal’s decision not to reinstate the application was illogical or unreasonable
The applicants here sought reinstatement of their application by way of an email sent to the Tribunal on 29 December 2017 (CB 108-109).
As outlined above, that email correspondence explained that the applicants had received the Tribunal’s hearing invitation letter (dated 29 November 2017) and that they were aware that they were required to attend a hearing before the Tribunal on 20 December 2017. However, the applicants were fearful of attending that hearing because they were “facing a problem with [their] visa[s]” and were unsure “about the status of [their] visa[s]” (CB 108).
The Tribunal, in its Confirmation Decision, had regard to the applicants’ email correspondence (which was reproduced in full in the Confirmation Decision at [4]).
Having had regard to that correspondence, the Tribunal determined that it was not appropriate to reinstate the applicants’ review application. In coming to that conclusion, the Tribunal had regard to the fears raised by the applicants about the uncertainty surrounding their visa status but considered that the applicants had a range of options open to them. Specifically, the Tribunal stated:
5.The applicants are claiming that they were afraid to attend the hearing as they were not aware of their visa status. However, the applicants had a range of options available to them which would have assured them of their visa status and that in any event their visa status or otherwise would not have a direct bearing on their appearance at the Tribunal and review of their cases. They had, they state, engaged a lawyer, who they could have consulted about these matters, they could have telephoned the Department of Immigration, or could have checked these matters with the Tribunal, all of which they did not do, and concede that they did not do. They concede that they received the invitation to hearing, but chose not to attend.
6.In these circumstances I do not consider it appropriate to reinstate the applications – the applicants have made their own choices about seeking advice to attend the hearing and did not attend the hearing despite receiving the invitation to attend. They had access to a range of straightforward options which would have allowed them to become aware of their situation and did not take any of them.
It cannot be said that the Tribunal’s findings in relation to the applicants’ explanations for not attending the Tribunal hearing were neither logical nor reasonable. While this Court might have come to a different conclusion, that is not the test on review. The issue for the Court’s consideration is whether, on the evidence before it, the Tribunal’s conclusions were “clearly unjust” or “arbitrary” or “capricious” or “unreasonable”.
The Court does not consider the Tribunal’s conclusions to be unreasonable. The applicants made no attempt to contact the Tribunal or the Department in the lead up to the Tribunal hearing. They did not seek to regularise their visa status or engage a lawyer to assist them with their Tribunal review or visa issues, despite speaking with a lawyer about the issues they were facing. The applicants also did not advise the Tribunal that they would not be attending the hearing.
Given the nature of the evidence before the Tribunal and the Tribunal’s consideration of that evidence, the Tribunal’s determination that this was not an appropriate case for reinstatement was entirely reasonable: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87].
No error arises in this regard.
Conclusion
The application for judicial review filed by the applicants on 11 January 2018 (and amended on 31 October 2022) has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 4 November 2022
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