AGB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 707
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AGB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 707
File number(s): MLG 121 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 9 August 2023 Catchwords: MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) – where applicant seeks sole ground for judicial review – found no jurisdictional error on behalf of the Administrative Appeals Tribunal. Legislation: Migration Act 1958 (Cth) ss 5AAA(2), 36(2)(a)(aa), 425, 425A, 426A(1)(A), 426A(1A)(a), 441A, 441A(5), 441C(5), 474(2), 476.
Migration Regulations 1994 (Cth) reg 4.35D(3).
Cases cited: Craig v South Australia (1995) 184 CLR 163
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 26 July 2023 Place: Melbourne Counsel for the Applicant: Litigant in person Counsel for the First Respondent: Ms Hancock of Clayton Utz ORDERS
MLG 121 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGB18
Applicant
AND: MINISTER FOR HOMEAFFAIRS
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 Application filed 17 January 2018 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
Before the Court is an Application filed on 17 January 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 20 December 2017. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa (visa).
CONTEXT
The applicant is a citizen of Malaysia.
On 6 April 2016 the applicant entered into Australia on an Electronic Travel Authority (Class UD) visa.
On 7 June 2016 the applicant applied for a Protection (subclass 866) visa.
The applicant’s claims were set out in his visa application. Relevantly, the applicant claimed that:
(1)he is a coalition supporter which stands against the Malaysian government;
(2)he criticised the government over Facebook and other social media forums, and now fears he is a marked person and may be sentenced to a jail term;
(3)the government was going to block its critics from flying out and his passport was about to cease, so he decided to fly to Australia and seek assistance;
(4)he received a verbal warning from an MP who was a governmental fanatic; and
(5)he did not seek help from the Malaysian authorities because they were controlled by the Malaysian government.
On 2 September 2016 the delegate of the Minister refused to grant the applicant the visa.
On 3 October 2016, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant provided the email address “[email protected]” (applicant’s email address), and the mobile number “xxxxx xxx29” (applicant’s mobile) in the application for review.
On 27 September 2017, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 20 November 2017 at 9.30am. 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.
On 16 November 2017, the applicant informed the Tribunal that he would not be able to appear on 20 November 2017 because his wife was pregnant. On the same day, the Tribunal requested a medical certificate evidencing the applicant wife’s pregnancy.
On 17 November 2017, the applicant provided the Tribunal with medical evidence in support of his adjournment request.
On 20 November 2017, the Tribunal emailed the applicant advising that the applicant’s adjournment request had been approved. The Tribunal’s email also invited the applicant to attend a rescheduled in-person hearing on 19 December 2017 at 9.00am.
On 12 December 2017 and 18 December 2017 the Tribunal sent an SMS hearing reminder to the applicant’s mobile. Delivery of both SMS hearing reminders were unsuccessful.
The applicant did not attend the hearing on 19 December 2017. As the applicant had not contacted the Tribunal to explain his non-attendance, the Tribunal decided to proceed to make a decision on the evidence available to the Tribunal.
On 20 December 2017, the Tribunal affirmed the decision not to grant the applicant the visa. The Tribunal concluded that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (Act), and the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 20 December 2017 (Tribunal Decision).
At paragraph [19] of the Tribunal Decision the Tribunal summarised the Applicant’s claims (as set out in paragraph [5] above).
At paragraph [20] of the Tribunal Decision, the Tribunal found that these claims were “vague and lacking in detail.” On this basis, the Tribunal did not accept any of the applicant’s claims for protection (at paragraph [27]) and found that he had failed to satisfy the refugee or complementary protection assessment (at paragraph [30] and [31] respectively).
At paragraphs [22] – [25] the Tribunal sets out the matters it would have explored with the applicant in relation to his claims had he attended the hearing, including asking questions about what type of support for the coalition the applicant engaged in, asking the applicant to provide evidence of the Facebook comments, and questions about how the applicant managed to leave Malaysia on a legally obtained passport and visa, despite the applicant’s fears about the authorities challenging his freedom of movement.
The Tribunal affirmed the decision not to grant the applicant a protection visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 17 January 2018.
The Application contains the following sole ground for judicial review (without amendment):
1.The Tribunal did not make it’s decision on 20 December 2017 according in law in that:
1.1The Tribunal was made decision without looking at the evidence of the applicant.
The applicant filed the following further relevant material:
(1)affidavit of the applicant filed 17 January 2018, annexing the Tribunal’s decision.
The Minister filed a Response on 12 February 2018. The Response contained the following grounds:
1.the Administrative Appeals Tribunal (Tribunal) decision dated 20 December 2017 is not affected by jurisdictional error and is therefore a privative clause decision within the meaning of s 474(2) of the Migration Act 1958 (Cth). The Tribunal’s decision, therefore:
a.is final and conclusive;
b.must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
c.is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
The Minister also filed written submissions on 11 November 2022. In summary, the Minister submits that the applicant provided no evidence in support of his claims for protection. As such, the Minister submits that the applicant simply disagrees with the Tribunal’s decision. At the hearing, the Minister submitted that the applicant was properly invited to attend a hearing pursuant to s 425 of the Act but failed to attend at the scheduled time and place. In such circumstances, the Minister submitted that pursuant to s 426A(1)(A) of the Act, it was open to the Tribunal to make a decision without providing the applicant with any further opportunity.
The Hearing
The hearing took place on 26 July 2023.
The applicant is self-represented and was assisted by a Malay interpreter at the hearing.
At the hearing of this matter, the applicant was invited to elaborate and sought to add the following for consideration of the Court:
(a)He did not attend the rescheduled hearing on 19 December 2017 because he was caring for his new born child; and
(b)The Tribunal did not provide him with an opportunity to inform it as to why he did not attend the hearing.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
The applicant’s claims for protection are accurately summarised in the Tribunal’s Decision and are set out at paragraph [5] above.
It is correct that the Tribunal did not consider the applicant’s evidence. However, no error arises by the Tribunal’s failure to do so. Firstly, the applicant provided no evidence in support of his claims to the Tribunal. Secondly, s 5AAA(2) of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The applicant did not do so. The applicant did not attend the hearing before the Tribunal on 20 December 2017, despite that hearing having been rescheduled at the applicant’s request and, most importantly, despite having being advised that the Tribunal had considered all the material before it and could not make a favourable decision on that information alone. Thirdly, due to the applicant’s failure to attend the hearing, matters to do with the applicant’s claim (as set out at paragraphs [22] – [25] of the Tribunal’s Decision) could not be explored.
It follows that there is no jurisdictional error on behalf of the Tribunal in determining the matter without the applicant’s evidence.
As to the applicant’s contention that the Tribunal ought have provided him with a further opportunity, under s 426A of the Act, when an applicant is properly invited to attend a hearing but fails to do so, s 426A(1A)(a) empowers the Tribunal to make a decision without taking any further action to allow or enable the applicant to appear before it.
The Tribunal’s hearing invitation complied with the relevant legislative requirements in s 425A because it:
(1)gave the applicant notice of the day, time and place of the scheduled hearing;
(2)gave the applicant notice by one of the methods specified in s 441A of the Act, namely, transmitting it by email to the applicant’s nominated email address, being the last email address provided to the Tribunal in connection with the review as required by s 441A(5) of the Act;
(3)gave a period of notice that was at least the prescribed period, being 14 days after the date of receipt of the notice: reg 4.35D(3) of the Migration Regulations 1994 (Cth). As the hearing invitation was sent by email, the applicant was taken to have received it at the end of the day on which it was transmitted: s 441C(5) of the Act. The applicant was notified of the rescheduled hearing on 20 November 2017 and was therefore given 29 days’ notice of the hearing; and
(4)contained a statement of the effect of s 426A of the Act.
Further, the Tribunal’s exercise of the power in the present case was reasonable because the applicant had been properly notified of the hearing, the applicant had previously sought an adjournment when unable to attend and no reason for non-appearance was given nor further request for an adjournment made.
It follows that there is no jurisdictional error on behalf of the Tribunal in determining the matter without providing the applicant with a further opportunity to appear or provide an explanation for his non-attendance at the rescheduled hearing.
The Application before this Court therefore cannot succeed.
CONCLUSION
For the above reasons, the Application must be dismissed.
Costs are sought by the Minister. I will order that the applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 9 August 2023
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