AGV20 v Minister for Immigration and Anor

[2020] FCCA 2980

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGV20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2980

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – where the applicant failed to appear before the Tribunal – where the applicant failed to have the matter reinstated before the Tribunal within fourteen days – whether the Tribunal had discretion to make a decision on compassionate grounds – no jurisdictional error made out – application dismissed.

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), r. 44.12

Applicant: AGV20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 135 of 2020

Judgment of: Judge Street

Hearing date: 3 November 2020

Date of Last Submission: 3 November 2020

Delivered at: Sydney

Delivered on: 3 November 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Mr A Bicknell, MinterEllison, via Microsoft Teams.

ORDERS

1. The applicant’s oral application for an adjournment is refused.

2. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 3 November 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 135 of 2020

AGV20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 January 2020 concerning a decision to dismiss the applicant’s application for review. 

2. The applicant is a citizen of India and lodged an application for protection on 29 October 2015. On 16 December 2016, a delegate of the first respondent (“the Delegate”) found that the applicant failed to meet the criteria for the grant of a Protection visa. Via email sent on 29 November 2019, the applicant was invited to attend a hearing on 18 December 2019. That email was sent to the email address identified by the applicant in the application for review, dated 20 December 2016. 

3. The Tribunal found that the applicant had been properly invited to attend the hearing in accordance with the statutory regime and dismissed the applicant’s application for non-appearance on 18 December 2019.

4. Under s 426A(1A)(b) of the Act, the applicant was notified of the dismissal decision in accordance with the statutory regime. The applicant failed to seek reinstatement within the period given in that notification, and on 7 January 2020, the Tribunal found that the applicant had been properly notified of the dismissal decision, in accordance with s 426B(5) of the Act. The Tribunal found that no application for reinstatement had been made within the 14 day period and accordingly confirmed the decision to dismiss the application. 

Before the Court

1. These proceedings were commenced on 17 January 2020 and on 20 February 2020, a Registrar of the Court fixed the matter today for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The Registrar also made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing and the applicant confirmed that he understood the explanation given by the Court. 

3. The applicant informed the Court that he had sent his submissions to his lawyer and that he wanted his lawyer to speak for him. 

4. The Court clarified with the applicant that he was seeking an adjournment. The applicant provided no satisfactory explanation as to why he had not had ample opportunity to obtain legal representation if he was able to do so, and there is no lawyer on the record in respect of these proceedings. 

5. The adjournment was opposed by the first respondent. 

6. The Court is not satisfied that an adjournment was warranted in the interests of the administration of justice and the Court has taken into account in that regard the ample opportunity the applicant has had to obtain legal representation, as well as the want of merits in the substantive application. It is for these reasons the oral application for an adjournment was refused.

The grounds

1. The grounds in the application are as follows: 

   1.APPLICANTS CLAIMS THAT THE ADMINSTRATATIVE APPEAL TRIBUNAL MADE JURISDICTIONAL ERROR WHEN IT DID NOT CONSIDER THE APPEAL FROM APPLICANT TO CONSIDER ON THE COMPASSIONATE REASON.

   2.I AM SICK ON DAY WHEN AAT CALL FOR INTERVIEW.I AM UNABLE WALK BECAUSE I HAVE FEAR.

   3.I FORGET SEND EMAIL TO THEM THAT I AM SICK.

   4.I APPEAL TO COURT IF I WILL RETURNI AM IN SERIOUS TROUBLE.

   5.I APPEAL TO HONOURABLE COURT CANCEL AAT DECESION AND RETURN MY CASE TO AAT.SO THEY CAN CAAL ME FOR INTERVIEW.

Ground 1

1. Ground 1 makes complaint about a failure to consider compassionate reasons. There was no discretion the Tribunal had where the applicant failed to seek reinstatement within 14 days. 

2. No arguable case of relevant errors made out by ground 1.

Ground 2

1. In relation to ground 2, there is no evidence that the applicant was sick and it does not explain the failure by the applicant to seek reinstatement after being notified of the dismissal decision. 

2. No arguable case of relevant erroris made out by ground 2. 

Ground 3

1. In relation to ground 3, the applicant’s assertion that he forgot to send an email because he was sick does not give rise to a proper explanation as to why the applicant did not seek reinstatement within the 14 day period after notification of the dismissal. 

2. No arguable case of relevant error is disclosed by ground 3. 

Grounds 4 and 5

1. Grounds 4 and 5, in substance, invite the Court to engage in an exercise of merits review or to determine the matter on compassionate or discretionary grounds. The Court has no power to do so and no arguable case of relevant error is disclosed by grounds 4 and 5. 

2. The Court is satisfied that the application has not raised an arguable case for the relief claimed. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 3 November 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 10 December 2020