Aix17 v Minister for Immigration

[2019] FCCA 603

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIX17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 603

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal complied with the statutory scheme in inviting the applicant to appear before it – whether the applicant was taken to have received a hearing invitation – whether the Administrative Appeals Tribunal erred in the exercise of its discretion to decide the review without taking any further action to enable the applicant to appear before it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 411C, 425A, 426A, 441A, 474, 476
Migration Regulations 1994 (Cth), reg.4.35D

Cases cited:

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Applicant: AIX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 261 of 2017

Judgment of: Judge Emmett

Hearing date: 6 March 2019

Date of Last Submission: 6 March 2019

Delivered at: Sydney

Delivered on: 6 March 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Ms Charlotte Saunders
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 261 of 2017

AIX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 5 January 2017 (“the Tribunal”). The Tribunal’s decision affirmed a decision of the delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa (“Protection Visa”) in circumstances where the applicant failed to attend a scheduled hearing before the Tribunal.

2. The background of this matter and the Tribunal’s decision are accurately summarised in the submissions of the first respondent, as follows:

   “Background

   2. The applicant is a citizen of China born 24 October 1972. The applicant applied for a Protection (Class XA) visa on 22 July 2014.

   3. On 1 June 2015, the delegate refused grant of the visa. The delegate found that the applicant's evidence was not credible. In particular, the delegate found that:

   3.1 the applicant's home was not forcibly acquired and demolished by the local government in China or that he was denied compensation for that reason;

   3.2 the applicant was not assaulted and seriously injured by the police on 2 September 2013;

   3.3 he did not petition for increased compensation to the city or provincial government's or through the local court in China;

   3.4 he was not arrested and detained for seven days in China in December 2013;

   3.5 he was not assaulted and harassed by a member of the black society at the behest of a construction company who owed him money;

   3.6 he would not have a fear of persecution on return to China for either of the above reasons.

   4. On 29 June 2015, the applicant applied to the (then) Refugee Review Tribunal for review of the delegate's decision. In the application the applicant provided the email address [applicant’s email address redacted] for correspondence. The applicant did not provide a mobile contact number.

   5. On 17 October 2016, the AAT wrote to the applicant inviting him to attend a hearing before it on 16 November 2016. It provided details of the location of the hearing and included the statement:

   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.     

   6. On 16 November 2016, there was no appearance by the applicant at the hearing. 

   7. On 5 January 2017, the AAT affirmed the decision under review.

   Tribunal Decision

   8. On 17 October 2016, the AAT wrote to the applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The AAT invited the applicant to a hearing to be held 16 November 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the AAT may make a decision on his case without further notice ([11]).

   9. No response was received to the invitation letter and the applicant did not appear before the AAT on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to section 426A of the Act, the AAT decided to make a decision on the review without taking any further action to enable the applicant to appear before it ([12]).

   10. The AAT noted that the applicant claimed to fear harm in China at the hands of local officials whom he had angered by petitioning about their corrupt activities. He also claimed that mafia figures were ordered to harm him when he sought payment for a job he performed. Although the applicant did not specify a Convention ground, the AAT accepted that he could be seen as claiming to fear harm because of his real or imputed political opinion ([14]).

   11. The AAT considered that neither the written material or the applicant's evidence at the Departmental interview provided significant circumstantial detail about any of these alleged events ([17]).

   12. The AAT considered that the circumstances described by the applicant could be seen as dramatic and memorable ones for him if they were, as he claimed, sufficiently serious to cause him to flee his homeland to seek safety in Australia. The AAT considered that it would be reasonable to expect the applicant to be able to explain such circumstances in some depth. The AAT noted that it would have used the opportunity of the hearing to ask the applicant about these matters and allow him the opportunity to explain how they would engage Australia's protection obligations. However, this was not possible because the applicant did not attend the hearing, notwithstanding that the hearing invitation letter made it clear that the AAT was not able to make a favourable decision on the information before it. The AAT noted that, where an applicant does not attend a hearing, the AAT has only the information before it from which to make a determination ([18]).

   13. The AAT considered that the information before it did not provide a sufficient basis to be satisfied that there was a real chance that on return to China, the applicant would suffer harm of any kind for the Convention reason of his political opinion, real or imputed, adverse to corrupt officials ([19]).

   14. The AAT was therefore not satisfied that the applicant had a well-founded fear of persecution for a Convention reason should he return to China and was not satisfied that he was a refugee ([20]).

   15. In circumstances where the AAT dismissed the applicant's claims on a factual basis, it was not satisfied that there were substantial grounds to believe that as a foreseeable consequence of him being removed to China there would be a real risk that he would suffer significant harm from government officials, the mafia or anyone else ([21]).”

3. The applicant was unrepresented before this Court this morning, although he had the assistance of an interpreter. The applicant confirmed that he attended a directions hearing before a registrar of this Court on 18 May 2017. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of his application.

4. The applicant confirmed that he had not filed any further documents in support of his application and that he had no further documents to provide to the Court this morning.

5. The applicant confirmed that he relied on the grounds identified in his initiating application, filed on 27 January 2017, as follows:

   “1. AAT didn’t send me letter for new evidence.

   2. AAT should give me a chance to give my evidence.

   3. AAT did not give me the fairness. I should be invited to have a hearing.”

   (Errors in original)

6. The grounds were interpreted for the applicant and he was invited to say whatever he wished in support of those grounds and in support of his application generally. 

7. Before inviting the applicant to make submissions, I explained to the applicant that the role of this Court was very different to that of the Tribunal, and that it’s not for this Court to reconsider his claims and reach different findings or make different conclusions. I explained that this Court has no power to interfere with the decision of the Tribunal unless this Court is satisfied that the decision is affected by a mistake that goes to its jurisdiction. I explained that if the findings made by the Tribunal were open to it on the evidence and material before it, then the fact that the applicant may disagree with them is not sufficient to establish a jurisdictional error.

8. I also explained to the applicant that the Tribunal was required to comply with a statutory regime inviting him to come to a hearing, and that if the Tribunal had complied with that statutory regime, the fact that he may not have received the invitation, again, was not sufficient to demonstrate error on the part of the Tribunal.

9. The applicant confirmed that the nub of his complaint was that he had not received a letter of invitation from the Tribunal inviting him to a hearing. Otherwise, the applicant had nothing to say in support of any of the grounds of his application or in support of his application generally.

10. On 29 June 2015, the applicant lodged an application for review by the Refugee Review Tribunal of a decision of the first respondent, dated 1 June 2015, which refused the applicant a Protection Visa. On the application form lodged with the Refugee Review Tribunal, the applicant identified a street address and an email address under the heading “Correspondence details”. Receipt of that application was confirmed by the Refugee Review Tribunal to the applicant by email dated 30 June 2015.

11. On 17 October 2016, the Tribunal emailed the applicant attaching a letter, dated 17 October 2016, inviting the applicant to attend a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The invitation, dated 17 October 2016, gave the applicant notice of the day, time and place at which the applicant was scheduled to appear. The notice was sent to the applicant at the email address given by him to the Tribunal.

12. Section 441A of the Act makes clear that a method of corresponding with an applicant in relation to the transmission of documents includes by email to the last email address provided to the Tribunal by an applicant in connection with a review.

13. The email of 17 October 2016 was, in the circumstances, sent in accordance with s.441A(5) of the Act and s.425A(2)(a) of the Act.

14. Section 425A of the Act also provides that the period of notice given to an applicant before the hearing date must be at least the prescribed period or, if no period if prescribed, a reasonable period and must inform the applicant of the effect of his failure to appear before the Tribunal. Regulation 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”) provides that the prescribed period was 14 days from the day on which the applicant received the hearing invitation.

15. Pursuant to s.441C(5) of the Act, the applicant is taken to have received the hearing invitation at the end of the day on which the email was transmitted.

16. In the circumstances, the applicant is deemed to have received the hearing invitation at the end of the day on 17 October 2016. The date of hearing to which the applicant was invited was 16 November 2016, clearly in excess of the 14 days’ notice.

17. The invitation letter, dated 17 October 2016, emailed to the applicant informed the applicant that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal and may dismiss the application for review without any further consideration of the application or the information before it. The letter also stated that a case dismissed may 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; and, if the member confirms the dismissal, then the decision under review is taken to be affirmed.

18. I accept that the provision of that information to the applicant is in accordance with s.425A(4) of the Act. In the circumstances of this case, for the reasons referred to above, the Tribunal complied with the statutory regime in inviting the applicant to come to a hearing before it.

19. The Tribunal noted the invitation emailed to the applicant on 17 October 2016 and noted that the applicant was advised that if he did not attend the hearing and a postponement was not granted, that the Tribunal may make a decision on his case without further notice.

20. The Tribunal noted that no response had been received to the invitation letter and that the applicant did not appear before the Tribunal on the day, time and place at which he was scheduled to appear in accordance with the invitation. The Tribunal then determined to exercise the discretion given to it under s.426A of the Act to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it.

21. In circumstances where the Tribunal satisfied itself that the applicant had been notified in accordance with the statutory regime and that no response had been received to the invitation and that the applicant did not appear, the Tribunal’s exercise of its discretion to decide the review without taking any further action to enable the applicant to appear before it was open to it and was exercised without error.  In making this finding, I refer to Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 per Gageler J, as follow:

    “68. The Tribunal is exhorted to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”, to “act according to substantial justice and the merits of the case”, and in applying Div 4 of Pt 7, within which ss 425 and 426A are located, to “act in a way that is fair and just”. Because Div 4 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”, the Tribunal acting fairly and justly is entitled to regard an applicant to whom it is satisfied that an invitation complying with s 425 has been sent as having had adequate notice of his or her opportunity to appear before the Tribunal when considering exercising the discretion under s 426A(1) in the event of non-appearance.

    69. Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that “no sensible [Tribunal] acting with due appreciation of its responsibilities” could have taken that course.”

    (Footnotes omitted)

22. In proceeding to make a determination or to make decision on review, the Tribunal noted the applicant’s claims, however found them to be no more than a number of brief and entirely unsubstantiated assertions. The Tribunal found that neither the written material nor the applicant’s evidence at the department interview provided significant circumstantial detail of his claims. The Tribunal noted that it would be reasonable to expect the applicant to be able to explain those circumstances in some depth at a hearing. The Tribunal stated that it would have used the opportunity of the hearing to ask the applicant about those matters and allow him an opportunity to explain how they would engage Australia’s protection obligations.

23. In the circumstances, the Tribunal was not satisfied that the applicant met the criteria either under s.36(2)(a) of the Act or s.36(2)(aa) of the Act in being a person to whom Australia owes protection obligations; and, accordingly, the Tribunal affirmed the decision under review.

24. The Tribunal’s reasons for its conclusion were open to it on the evidence and material before it and for the reasons it gave. The Tribunal did not make adverse credibility findings. It simply found that it could not reach the required state of satisfaction to grant the applicant the Protection Visa that he sought.

25. Section 65 of the Act makes clear that if a decision maker, such as the Tribunal, is not satisfied that the criteria for the grant of a visa are met, then it must refuse to grant the visa. In the circumstances, the Tribunal’s findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issues before it. The Tribunal’s findings were not tainted by any failure to afford procedural fairness or reach a finding without logical or probative basis, nor were they unreasonable or without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

26. As stated above, the Tribunal complied with the statutory regime in the making of its decision and the conduct of its review. The Tribunal applied the correct law to the findings that it made, and its decision is without error.

27. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

28. The proceeding before this Court, commenced by way of application filed on 5 January 2017, should be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date:  12 March 2019