AFA17 v Minister for Immigration

[2017] FCCA 2099

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFA17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2099

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – where applicant did not attend the Tribunal hearing – where the Tribunal dismissed the application in the absence of the applicant – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 426A, 476

Applicant: AFA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 123 of 2017

Judgment of: Judge Street

Hearing date: 31 August 2017

Date of Last Submission: 31 August 2017

Delivered at: Sydney

Delivered on: 31 August 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Day
DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 123 of 2017

AFA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 December 2016, affirming the decision to dismiss the application under s.426A(1A)(b) of the Act.

The Delegate’s decision

1. The applicant is a citizen of China. The delegate, on 9 March 2015, found the applicant was not a person in respect of whom Australia had protection obligations and found the applicant failed to meet the criteria under the Refugees Convention or for complementary protection. The delegate identified the applicant’s claims in relation to alleged treatment of the applicant by the police and an allegation that he will be locked up and he will be caused harm and that he feared the authorities.

2. The delegate identified the applicant’s supplementary statement. In relation to the alleged events, the delegate explained concerns in relation to the credibility of the applicant. The delegate found it unlikely that the scenario the applicant described of the police lying in wait for a restaurant owner, stealing his car, and detaining him for a day to stop him going about his lawful business happened. The delegate noted the applicant was not able to provide any new information or additional detail at the interview, which lead the delegate to conclude that this was a rehearsed narrative manufactured to embellish his claims about the outstanding account at his restaurant. The delegate found that the applicant had fabricated his account of the cadres visiting the restaurant and accumulating a debt of 130,000 yuan.

3. The delegate made reference to the applicant’s ability to obtain a replacement passport when he is travelling from the airport when he departed China, and that the applicant was not stopped or questioned on departure and found that indicated that he was of no adverse interest to the authorities. The delegate found the applicant’s claim that he was of adverse interest to the Chinese authorities if he were to return to China was not credible. The delegate found that the applicant was not owed 130,000 yuan by local officials, that he was not detained and that he was not of adverse interest to the Chinese authorities if he were to return to China.

The Tribunal’s decision

1. On 17 November 2016, the Tribunal determined to dismiss the application under s.426(1A)(b) in circumstances where the applicant was sent, to his correct address, an invitation to appear before the Tribunal, to give evidence and present arguments.

2. That letter informed the applicant that, having considered the material before it, the Tribunal is unable to make a favourable decision on that information alone. There is no suggestion in the present case that the applicant did not receive the letter or that it was not sent to the correct post office box address provided by the applicant. Evidence has been lead in support of the posting of the letter to that correct address. A suggestion has been made by the applicant he did not receive that invitation.

3. The Tribunal noted that the applicant did not appear at the scheduled time and that no satisfactory reason for nonappearance had been given and, accordingly, in those circumstances, the Tribunal decided to dismiss the application without further consideration of the application or the information before the Tribunal. In this case, no response to hearing was completed or returned by the applicant engaging with the invitation to attend the hearing.

4. Where the applicant is invited under s.425 to appear before the Tribunal but does not appear before the Tribunal as per the invitation, s.426(1A)(b) provides as follows:

   (1A) The Tribunal may:

   (b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

5. Consistent with the provisions of s.426A(1B), the Tribunal notified the applicant of the decision to dismiss the application on 17 November 2016, identifying that the applicant may apply for reinstatement by application on or before 12 December 2016. No such application was made.

6. On 14 December 2016, the Tribunal sent the applicant a decision made on 13 December 2016 to confirm the decision to dismiss the application consistent with s.426A(1E). The Tribunal identified the circumstances in which the dismissal had occurred on 17 November 2016. The notification sent of that decision was sent to the applicant’s identified address and noted that the applicant did not apply for reinstatement.

7. It was in those circumstances that the Tribunal confirmed the decision to dismiss the application.

Proceedings before this Court

1. The grounds in the application are as follows:

   Jurisdictional errors were made.

   1. Tribunal does not treat my case fairly because all of my claims were not considered at all.

   My claims should be considered in terms of relevant law even if I did not attend hearing.

   2. Tribunal does not consider potential risks to me if I return to China.

2. On 4 May 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.

2. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. The Court explained that it would have identified the evidence, and then hear submissions from the applicant, and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Submissions from the bar table

1. From the bar table, the applicant maintained that the Tribunal had not assessed his claims against the relevant law and had not considered the claims he put forward. This, in substance, is a repetition of what is in Ground 1 of the application. The Tribunal, after receiving the application for review, wrote to the applicant and invited the applicant to attend a hearing to give evidence and present arguments.

Consideration

Ground 1

1. That letter informed the applicant that the Tribunal was unable to make a favourable decision on the material that it had before it. It was for the applicant to decide whether to engage with the review process by the Tribunal. On the face of the material before the Court, the applicant did not engage at all with that process, failed to complete the response to hearing, failed to attend the hearing, and failed to request any reinstatement.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. The decision of the Tribunal to proceed to determine the matter and confirm the dismissal was open on the material before the Tribunal and cannot be said to be unreasonable or to lack an evident and intelligible justification.

3. The Tribunal was deprived of the benefit of having the applicant engage with the Tribunal and to assist the Tribunal understand and evaluate the applicant’s claims, evidence and arguments. That was the applicant’s choice. The Tribunal was not required to descend into the applicant’s claims in the circumstances of the present case where the applicant had been informed already that a favourable decision could not be made on the material before the Tribunal. Further, the notifications were sent to the correct address and the Court does not accept the applicant’s assertion unsupported by evidence that the notifications were not received. Further, as the notifications were sent to the correct address, the applicant is deemed to have received the same under the statutory provisions. No jurisdictional error is made out by Ground 1.

Ground 2

1. In relation to Ground 2 this is, in substance, a repetition of Ground 1, that the Tribunal did not consider the risks to which the applicant would be exposed. The Tribunal was not required to do so in circumstances where the applicant had been invited to attend a hearing, had declined to do so, had not engaged with the Tribunal, and had not sought to have a reinstatement after being informed that his application had been dismissed within the relevant time.

2. Ground 2 fails to make out any jurisdictional error. Nothing said by the applicant from the bar table identified any jurisdictional error.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 September 2017