AFC21 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 708

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AFC21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 708  

File number(s):

MLG 88 of 2021

Judgment of:

JUDGE J YOUNG

Date of judgment:

9 August 2023

Catchwords:

MIGRATION –application for review of registrar’s decision – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – where applicant did not attend hearing before Tribunal – where applicant did not apply for reinstatement before Tribunal – where application for review of registrar’s decision made out of time – found that grounds for judicial review have no reasonable prospects of success  

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2)

Migration Act 1958 ss 26B(6), 36(2)(a), (aa), 425(1), 425A(1), (2)(a), (3), (4), 426(1)(a), (b), 426A(1A)(b), 426A(1E), 426B(2)(a)-(d), 426B(5)(a), (b), 441A(5)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 13.13(a), 21.02(1), (2), 21.04

Migration Regulations 1994 reg 4.35D

Cases cited:

Australian Securities and Investments Commission v Cassimatis [2013] FCA 641

Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473

Spencer v The Commonwealth (2010) 241 CLR 118

Division:

Division 2 General Federal Law

Number of paragraphs:

48

Date of hearing:

27 July 2023

Place:

Melbourne

Solicitor for the Applicant:

Litigant in person

Solicitor for the First Respondent:

Mr Cunynghame of Sparke Helmore Lawyers

ORDERS

MLG 88 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AFC21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE J YOUNG
DATE OF ORDER:	9 August 2023

THE COURT ORDERS THAT:

1.The applicant’s Application for Review of a Registrar’s decision filed 12 July 2023 be dismissed.

2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

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 J YOUNG:

INTRODUCTION

1. This is an Application for Review of a Registrar’s Decision made on 30 May 2023.

2. The Application before the Registrar was an Application by the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), for summary dismissal of the applicant’s Application for judicial review filed on 21 January 2021.

3. The Registrar made orders for the applicant’s Application to be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) and that the applicant pay the first respondent’s costs fixed in the amount of $4,189.38.

4. Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, the Minister’s Application for summary dismissal is to be considered afresh.

   BACKGROUND

5. The applicant is a citizen of China who arrived in Australia on 24 July 2017 on a visitor visa.

   Application for protection visa on 12 July 2018

6. On12 July 2018 the applicant applied for a Protection (subclass 866) visa (visa) on the basis that she claimed to fear harm from loan sharks due to outstanding debts she owed to them. The applicant received “malicious” threats as she failed to pay back the loan. The applicant claimed to fear harm if she were to return to China, as she believes she will be tortured and killed. The applicant further stated that she could not relocate elsewhere in China because the loan sharks “have many friends around the country” and they work in a group.

7. This was the extent of the information provided by the applicant in support of her protection visa application; no further evidence was put forward by or on behalf of the applicant.

8. The Department of Immigration and Border Protection (Department) confirmed receipt of the application for a protection visa by correspondence dated 2 August 2018. In that correspondence, the applicant was advised that the Department may make a decision on her application without requesting further information and stated that should could provide “any additional information you would like considered” via her ImmiAccount, mail or in person at her appointment for the collection of personal identifiers.

   Refusal of protection visa on 6 May 2019

9. On 6 May 2019, a delegate of the Minister (delegate) refused the applicant’s application for a protection visa as they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act).

10. A copy of the delegate’s decision, as well as information about the applicant’s rights of review, was sent to the applicant by her nominated email address on 6 May 2019.

    Application for review at Tribunal on 20 May 2019

11. On 20 May 2019, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. In the application for review, the applicant nominated the email address <[email protected]> (applicant’s email address) for correspondence and provided the mobile number “xxxxx xxx51”.

12. In correspondence from the Tribunal dated 22 May 2019 confirming receipt of her application, the applicant was advised if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible. The applicant was also advised of the need to keep the Tribunal updated with regard to her contact details.

13. On 6 November 2020 the Tribunal emailed the applicant enclosing an invitation for her to attend a hearing by telephone on 10 December 2020 at 1.30pm with an information sheet attached. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant did not respond to the hearing invitation.

14. The Tribunal sent SMS reminders of the hearing to the applicant on 3 December 2020 and 9 December 2020.

15. The applicant did not attend the hearing at 1.30pm on 10 December 2020.

16. The Tribunal telephoned the applicant at 1.30pm, 1.35pm, 1.42pm and 1.45pm. At 1.45pm the Tribunal concluded the hearing on the basis that the applicant did not appear. Pursuant to s 426A(1A)(b) of the Act the Tribunal dismissed the application for non-appearance (dismissal decision).

17. On the same day, the Tribunal sent a copy of the dismissal decision to the applicant’s email address. The notification letter sent with the dismissal decision informed the applicant that reinstatement of the application could be sought by 24 December 2020. The applicant was also provided with an information sheet entitled “information about dismissal of applications” which informed the applicant that if reinstatement was not sought within 14 days the Tribunal must confirm the decision to dismiss the application.

18. The applicant did not apply for reinstatement of the application.

19. On 4 January 2021 the Tribunal confirmed its original decision to dismiss the application (confirmation decision).

    Dismissal decision

20. The Tribunal found that the applicant was invited pursuant to s 425 of the Act to appear before it, by telephone, on 10 December 2020 at 1.30pm but did not appear at the scheduled time and place. The Tribunal found that the applicant was properly invited to a hearing in accordance with s 441A(5) and that two SMS hearing reminders were sent to the applicant prior to the hearing. The Tribunal found that no reason for the non-appearance was given. The Tribunal dismissed the application without further consideration of the application or the information before it.

    Confirmation decision

21. The Tribunal recorded that on 10 December 2020 the application was dismissed pursuant to s 426A(1A)(b) of the Act, the applicant had been notified of the dismissal decision and had been given a copy of the written statement in accordance with s 426B(5) of the Act. The Tribunal further recorded that the applicant had been advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. The Tribunal found that as the applicant did not apply for reinstatement within the 14 day period it must confirm the decision to dismiss the application.

    PROCEEDINGS IN THIS COURT

22. On 21 January 2021, the applicant filed an Application for judicial review of the Tribunal’s decision in this Court. In that Application, the applicant sought orders quashing the Tribunal’s decision.

23. In the Response filed 15 February 2023, the Minister sought orders that the Application be dismissed pursuant to r 13.13 of the Rules.

24. At the callover hearing on 21 February 2023, Orders were made listing the matter for a summary dismissal hearing. Procedural orders were also made for the filing of a court book, written submissions and any additional evidence upon which the parties sought to rely. Relevantly, Order 6.2 of the Orders permitted the applicant to file any Amended Application with proper particular of the grounds of the Application. The applicant did not file any Amended Application, nor did she file any written submissions or affidavits.

    Summary dismissal hearing on 30 May 2023

25. As stated, the summary dismissal Application was heard and determined by the Registrar on 30 May 2023, with the Registrar dismissing the Application for judicial review of the Tribunal’s decision.

    Application for review of a Registrar’s decision filed on 12 July 2023

26. As stated, the Application presently before the Court is an Application for a review of the Registrar’s decision, which was filed by the applicant on 12 July 2023, and that Application is to be conducted as a hearing de novo.

27. The Minister relies upon its written submissions filed on 10 May 2023. On 25 July 2023, the Minister filed further submissions but did not seek leave to rely upon those submissions at the hearing of this matter. Accordingly, the Court has not had regard to them.

    Late filing of application for review of a Registrar’s decision

28. Before turning to the summary dismissal Application, the preliminary issue of the late filing of the Application for review of the Registrar’s decision needs to be addressed.

29. Rule 21.02(1) of the Rules provides that an Application for review of a Registrar’s decision must be made within 7 days. Rule 21.02(2) provides that time may be extended in a proceeding by the Court ‘on any terms that the Court … thinks fit’.

30. The Registrar’s decision was made on 30 May 2023. An Application for review of that decision in this Court was therefore required to be made no later than 6 June 2023. The Application for review of the Registrar’s decision was not made until 12 July 2023.

31. Accordingly, the Application was made 36 days after the expiry of the statutory timeframe.

32. The Minister opposed any extension of time in this matter. The applicant said that the reasons for the late filing were that she was unaware for the time frame for lodgement and that she does not understand English documents.

33. Ultimately, in the circumstances of this case, I am satisfied in this instance that it is appropriate for the time for filing the review Application to be extended. This is in circumstances where the applicant is self-represented, has very limited English skills and there is no particular prejudice to the Minister (other than as to costs) if time were to be extended.

    SUMMARY DISMISSAL PRINCIPLES

34. In considering an application for summary dismissal either under rule 13.13(a) of the Rules or under s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim.[1] It is not necessary for the Court to be satisfied that the applicant is bound to fail.

    [1] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473.

35. The discretion to summarily dismiss an Application must be exercised with caution given it is an Order made at a preliminary stage in proceedings in the absence of a full and complete factual matrix and argument.[2] However, what is required is “a critical examination of the available material to determine whether there is a real question of law of fact which should be decided at trial”[3]. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.

    [2] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473

    [3] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641, [46].

    GROUNDS OF REVIEW

36. In her substantive Application for judicial review, the applicant raises the following grounds (without amendment):

    1.Tribunal did not handle my case legally and fairly.

    Tribunal dismissed my case simply because I did not attend the hearing.

    Tribunal did not list grounds to refuse my review application. Even if I did not attend hearing, Tribunal should consider all of relevant material.

    2.Tribunal did not consider whether I was harmed in China or whether I will be harmed if I go back to China.

37. At the hearing before me on 27 July 2023, the applicant appeared on her own behalf, assisted by a Mandarin interpreter.

38. The applicant was invited to elaborate on her grounds for review and submitted that she did not attend the hearing before the Tribunal because she did not understand “the rules”.

39. For the following reasons I am satisfied that the grounds of the substantive Application for judicial review have no reasonable prospects of success.

40. All of the grounds pleaded by the applicant are misconceived and may conveniently be dealt with together. Under s 426A of the Act, when an applicant is properly invited to attend a hearing but fails to do so, s 426A(1A)(b) empowers the Tribunal to dismiss the application without further consideration of the application or information before it.

41. The Tribunal’s hearing invitation complied with the applicable legislative requirements because it:

    (a)contained an invitation to the applicant to appear before it to give evidence as required by s 425(1) and s 426(1)(a) of the Act;

    (b)notified the applicant that she could give the Tribunal written notice to obtain oral evidence from a person or person as required by s 426(1)(b);

    (c)notified the applicant of the specified day, time and place of the hearing as required by s 425A(1);

    (d)was given to the applicant by one of the methods specified in s 441A of the Act namely, the applicant’s email address, which was an approved method for the Tribunal to give the document to the applicant as was required by s 425A(2)(a);

    (e)complied with s 441A(5) by transmitting the document by email to the last email address provided to the Tribunal by the recipient in connection with the review;

    (f)was taken to have been received by the applicant at the end of the day on which the document was transmitted in accordance with s 441C(5) (ie, on 6 November 2020);

    (g)complied with s 425A(3) by providing the applicant with a period of notice of the hearing that was at least the prescribed period of 14 days (as specified by reg 4.35D of the Migration Regulations 1994 (Cth); and

    (h)complied with s 425A(4) by containing a statement of the effect of s 426A about options available to the Tribunal if the applicant failed to appear before it.

42. The applicant was therefore validly invited to the hearing and accordingly, the Tribunal was not required to consider the applicant’s protection claims or any “relevant material” or whether the applicant would be harmed if she returned to China. For those reasons, the Tribunal was also not required to “list grounds” as to why the applicant’s visa application was refused. Further, the applicant was notified of the consequences of non-attendance at the hearing and, accordingly, any assertion that she was ignorant of “the rules” cannot be sustained.

43. In addition, the Tribunal’s exercise of power in the present case was reasonable because the applicant had been properly notified of the hearing, including by two SMS reminders close to the hearing date, which informed the applicant as to the consequences of failing to attend. Additionally, the Tribunal’s hearing record indicates that the Tribunal waited 15 minutes after the scheduled start time and attempted to call the applicant on four separate occasions, before determining the applicant had not appeared and no reason for non-appearance was given nor a request for an adjournment was made.

44. The Tribunal’s letter of 10 December 2020, notifying the applicant of the non-appearance decision and inviting her to apply for reinstatement, also complied with the statutory requirements as it:

    (a)enclosed a written statement of decision which complied with the requirements of subsections 426B(2)(a) to (d);

    (b)was given to the applicant within 14 days of the date of the decision (s 426B(5)(a));

    (c)was sent to the applicant by one of the methods specified in s 441A (namely, by email) as required by s 426B(5)(b); and

    (d)informed the applicant (in an attached information sheet) that she had 14 days in which to apply for reinstatement of the matter and, if she failed to apply for reinstatement within 14 days, the decision to dismiss the application must be confirmed (s 426B(6)).

45. Further, as stated, the applicant did not apply for reinstatement of the application within 14 days. Therefore, the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act.

46. For the above reasons, neither the dismissal decision nor the confirmation decision were unfair nor was the conduct of the Tribunal unreasonable.

    CONCLUSION

47. For the above reasons I find that the applicant’s substantive application has no reasonable prospects of success.

48. Accordingly, I make the orders set out at the commencement of this judgment.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       9 August 2023