AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 44
Federal Circuit and Family Court of Australia
(DIVISION 2)
AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44
File number(s): CAG 1 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 2 February 2023 Catchwords: MIGRATION LAW – application for review of Registrar’s decision – hearing de novo of respondent’s application for summary dismissal – decision of Administrative Appeals Tribunal – Protection (subclass 866) visa – where applicant’s review application at the Tribunal dismissed due to non-appearance – where applicant did not seek to have review application re-instated at the Tribunal – finding that grounds have no reasonable prospects of success – application dismissed with costs. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 143
Migration Act 1958 (Cth), ss 425, 426A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr 13.13, 21.02, 21.04
Cases cited: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v Li (2013) 249 CLR 332
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: 51 Date of last submission/s: 24 January 2023 Date of hearing: 24 January 2023 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitor for the Respondents: Ms M Harradine of Mills Oakley ORDERS
CAG 1 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIZ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
2 February 2023
THE COURT ORDERS THAT:
1.The applicant’s application for review of a Registrar’s decision filed on 16 December 2022 be dismissed.
2.The applicant pay the first respondent’s costs of this application fixed in the sum of $650.00.
3.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
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
DEPUTY CHIEF JUDGE MERCURI:
Introduction
This is an application for review of a decision made by Registrar Carney on 20 September 2022.
The application before the Registrar was an application by the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’), for summary dismissal of the applicant’s application for judicial review filed on 21 January 2022.
Registrar Carney made orders for the applicant’s application to be summarily dismissed pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’) and that the applicant pay the first respondent’s costs fixed in the amount of $3,930. The Registrar also made an order for the change of name of the first respondent to reflect current administrative arrangements.
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. It therefore falls to this court to consider the first respondent’s application for summary dismissal afresh.
Background
The applicant is a citizen of China.[1]
[1] Court book at page 1.
Application for protection visa on 10 October 2018
The applicant applied for a Protection (subclass 866) visa (‘protection visa’) on 10 October 2018 on the basis that he claimed to fear harm because he was a ‘devout underground Christian’.[2] The applicant’s visa application further provides the following reasons for why he left China:
(a)there is no freedom of religious belief (in China);[3]
(b)many of his church friends were caught during the underground gatherings and were cruelly tortured and insulted in the detention centre;[4]
(c)the police wanted to arrest the applicant because they knew he was a devout underground Christian;[5]
(d)they continually came to the applicant’s home and harassed his family;[6] and
(e)therefore, the applicant escaped China to Australia for his safety.[7]
[2] Court book at pages 1 to 23.
[3] Court book at page 16.
[4] Court book at pages 16 and 17.
[5] Court book at page 17.
[6] Court book at page 17.
[7] Court book at page 17.
The applicant further stated that he could not relocate elsewhere in China and that he would be arrested by the government wherever he goes.[8] He claimed to fear harm if he were to return to China as he is regarded as a heretic and would be arrested and insulted on return, and further stated that if he were to return to China, he would be forced to give up his religion and he would be cruelly tortured in prison.[9] Ultimately, the applicant stated that there is no freedom of religion in China and that he could not survive in China.[10]
[8] Court book at page 17.
[9] Court book at page 17.
[10] Court book at page 17.
This was the extent of the information provided by the applicant in support of his protection visa application. No further evidence was put forward by or on his behalf.
In correspondence from the Department of Home Affairs (‘the Department’) dated 10 October 2018 confirming receipt of his application, the applicant was advised that a delegate of the Minister may make a decision on his application without requesting further information from him and therefore he ‘should provide us with all the information you feel is relevant’.[11] The applicant was also advised in this letter of the need for him to keep the Department updated with regard to his contact details.
[11] Court book at page 27.
On 22 May 2019, the applicant was invited to attend an interview with the Department to discuss his application and claims for protection, scheduled for 11 June 2019.[12]
[12] Court book at page 42.
Refusal of protection visa application on 12 June 2019
On 12 June 2019, a delegate of the Minister refused the applicant’s application for a protection visa.[13] The delegate’s decision record is at pages 56 to 63 of the court book.
[13] Court book at pages 52 to 55.
It is apparent from the delegate’s decision that the applicant failed to attend the interview scheduled for 11 June 2019, nor did he make contact with the Department to seek an adjournment or to explain his absence.[14] The applicant also did not provide any further information in support of his protection visa application. In those circumstances, the delegate proceeded to make a decision on the basis of the information before the Department.
[14] Court book at page 57.
A copy of the delegate’s decision with information about the applicant’s rights of review, was forwarded to the applicant on 12 June 2019 by email to his nominated email address.[15]
[15] Court book at page 52.
Application for review at Tribunal on 24 June 2019
On 24 June 2019, the applicant filed a review application with the Administrative Appeals Tribunal (‘the Tribunal’).[16] In that application, the applicant included his email address and mobile phone number.
[16] Court book at pages 68 to 69.
On 25 October 2021, the Tribunal contacted the applicant by email at his nominated email account, stating:
Due to the COVID-19 pandemic, the AAT is not currently holding face to face (or in person) hearings in Melbourne or Sydney and registries are closed to all visitors until further notice. As a result, we are proposing to schedule a hearing for you to attend by video using Microsoft Teams.
If you do not have the appropriate technology or there are other barriers which would prevent you from participating in a hearing scheduled via Microsoft Teams, please advise the AAT within 7 days of receiving this email. If you do not respond to this email, we will assume that you do not have any issues with participating in a hearing scheduled in this manner.[17]
[17] Court book at page 76.
By letter dated 12 November 2021, the applicant was then invited to attend a hearing to be conducted on 30 November 2021 by videoconference using Microsoft Teams.[18] The correspondence by which this invitation was conveyed to the applicant included the following statement:
If you do not appear at the scheduled hearing, including not appearing by video conference … we may make a decision on the review without taking any further action to allow or enable you to appear … or may dismiss your application for review without any further consideration of the application or the information before us.
A dismissed case can 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. If the Member confirms the dismissal, the decision under review is taken to be affirmed.[19]
[18] Court book at pages 77 to 80.
[19] Court book at page 79.
In addition, on 23 November 2021, the applicant was sent a reminder SMS about the scheduled hearing.[20] On 25 November 2019, an updated link was provided to the applicant. There was otherwise no change to the time of the scheduled hearing.[21] A further SMS reminder was sent to the applicant on 29 November 2019, again to his nominated mobile phone number.[22]
[20] Court book at page 86.
[21] Court book at pages 87 to 90.
[22] Court book at page 91.
The applicant ultimately did not attend the hearing by videoconference on 30 November 2019.[23]
[23] Court book at pages 92 to 94.
Dismissal for non-attendance on 30 November 2021
On 30 November 2021, the Tribunal dismissed the applicant’s application as he had failed to attend the hearing scheduled that same day.[24] In the letter notifying him of this decision, the applicant was again advised in writing of his right to seek to have the matter reinstated before the Tribunal by 14 December 2021.
[24] Court book at pages 96 to 99.
In the Tribunal’s decision dismissing the application for non-appearance (‘Non-Appearance Decision’),[25] after setting out the background to this matter, the Tribunal stated:
4.… Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) and that the invitation has not been returned to sender. No satisfactory reason for the non-appearance has been given.[26]
[25] See Court book at pages 98 to 99.
[26] Court book at page 99.
On this basis, the Tribunal then decided to dismiss the application without further consideration of that application or the information before the Tribunal.[27]
[27] Non-Appearance Decision dated 30 November 2021 at paragraph [5].
Confirmation of decision to dismiss review application on 15 December 2021
The applicant ultimately did not make an application for the reinstatement of his application before the Tribunal. Consequently, on 15 December 2021, the Tribunal confirmed its previous decision of 30 November 2021 to dismiss the application (‘Confirmation Decision’).[28]
[28] Court book at page 103.
A copy of the Tribunal’s decision record in relation to the Confirmation Decision is at page 105 of the court book. It is this Confirmation Decision which is the subject of the application before this court for judicial review.
At paragraph [4] of the Confirmation Decision, the Tribunal said:
4.As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances the decision under review is taken to be affirmed.
Proceedings in this court
On 21 January 2022, the applicant filed judicial review proceedings in this court. In that application, the applicant sought orders quashing the Tribunal’s decision and an order directing the Tribunal to determine the applicant’s application according to law.[29]
[29] Initiating applicat6ion filed on 21 January 2022.
In the first respondent’s response, the Minister seeks orders that the application be dismissed pursuant to rule 13.3 of the Rules. The first respondent also seeks an order that the applicant pay the first respondent’s costs in a fixed amount.
By orders made on 2 May 2022, the summary dismissal application was listed for hearing on a date to be fixed. Procedural orders were also made for the filing of a court book, written submissions and any additional evidence upon which the parties seek to rely. Relevantly, order 5.2 of the May 2022 orders permitted the applicant to file any amended application with proper particulars of the grounds of the application. The applicant has not filed any amended initiating application, nor has he filed any written submissions.
Summary dismissal hearing on 20 September 2022
Ultimately, as stated, the summary dismissal application was heard and determined by Registrar Carney on 20 September 2022.
Application for review of a Registrar’s decision filed on 16 December 2022
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 16 December 2022, and that application is to be conducted as a hearing de novo.
The first respondent relies upon its written submissions filed on 5 September 2022.
At the hearing before me the applicant appeared on his own behalf, assisted by an interpreter in the Mandarin and English languages.
Late filing of application for review of a Registrar’s decision
Before turning to the summary dismissal application, the Minister raised a preliminary issue of the late filing of the application for review of the Registrar’s decision.
Relevantly, 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 that time may be extended in a proceeding by the Court ‘on any terms that the Court … thinks fit’.
The first respondent formally opposed any extension of time in this matter, although in submissions, noted that the court does have a broad discretion to extend this time limit. When asked, the applicant stated that initially he had not intended to ‘appeal’ the Registrar’s decision, however, he then discussed the matter with some friends who suggested that it may be worth pursuing a review given the nature of the Tribunal’s decision.
Although finely balanced, 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 particularly so in circumstances where the applicant has represented himself, where there is no claimed prejudice to the Minister and where the Minister, although formally opposing the extension of time, did not make any specific submission on how the court’s discretion ought to be exercised in this instance.
Summary Dismissal Principles
It is well settled that in considering an application for summary dismissal either under rule 13.13(a) of the Rules or under section 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.[30] It is not necessary for the court to be satisfied that the applicant is bound to fail.
[30] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473.
Nonetheless, the discretion to summarily dismiss an application must be exercised with caution, given that it is an order made at a preliminary stage in proceedings and without the benefit of fully developed evidence and argument. 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. The onus is on the party seeking the summary dismissal to persuade the court that the applicant has no reasonable prospects of success.
Grounds of review
When the applicant appeared before me, he was invited to make any submissions he wished in response to the submissions made by the Minister. Without in any way being critical of the applicant, who appeared on his own behalf, he did not make any submissions of substance.
In his substantive application for judicial review, the applicant raises the following grounds:
AAT made mistakes in my case.
1. AAT did not consider all my material and base on them to make decision.
2. AAT did not use its power properly and have bias against me.
3.Tribunal did not consider the chance I would be harmed if I return to my country.
I will now turn to consider each ground of review in turn.
Ground 1
By ground 1, the applicant claims that the Tribunal made mistakes in his case. The applicant does not identify what those ‘mistakes’ were, or indeed, whether they were mistakes which could give rise to a jurisdictional error.
There is nothing on the material before the court, or on the face of the Tribunal’s decision record, to suggest that any jurisdictional error occurred. The Tribunal complied with its obligations under section 425(2) of the Migration Act 1958 (Cth) (‘the Act’) to invite the applicant to appear before it. The invitation appears to have been validly made. It was sent to the same email address to which the delegate’s decision was sent and which prompted the filing of the Tribunal application. Importantly, it was also sent to the same email address to which the Confirmation Decision was sent, which seems to have prompted the making of the present application to this court.
The applicant did not appear at the Tribunal hearing scheduled for 30 November 2021. The applicant has not put forward any evidence before this court to explain his failure to appear. In those circumstances, ground 1 does not have any reasonable prospects of success.
Grounds 2 and 4
As to grounds 2 and 4, they take issue with the Tribunal’s consideration of the merits of the applicant’s protection visa claims. These grounds appear to misconceive the function undertaken in this instance by the Tribunal. The Tribunal did not expressly consider the merits of the application or any of the evidence before it. Rather, in circumstances where the applicant had been validly invited to attend a hearing before it and failed to do so, the Tribunal exercised its discretion under section 426A(1A) of the Act, as it was permitted to do, to dismiss the applicant’s application without any further consideration of the application or information before it.
There is no evidence to suggest that the Tribunal exercised its discretion under section 426A(1A)(b) unreasonably in the Li sense.[31]
[31] Minister for Immigration v Li (2013) 249 CLR 332.
As a result, neither grounds 2 nor 4 have any reasonable prospects of success.
Ground 3
Ground 3 makes an allegation of bias. No particulars are provided in respect of this ground, nor was any evidence led which might support such an allegation. It is well settled that an allegation of bias is a serious matter which must be firmly and distinctly made and clearly proven.[32] The applicant has had an opportunity to file an amended application, properly particularising the grounds of review, but has not done so.
[32] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
Moreover, as submitted for the first respondent, it is difficult to see how it could be said that the Tribunal was biased against the applicant in circumstances where the applicant did not attend the hearing before the Tribunal and, perhaps more importantly, the Tribunal did not consider the merits of the applicant’s claims or the evidence in support of those claims.
In those circumstances, and without proper particulars of any alleged bias, ground 3 also has no reasonable prospects of success.
Conclusion
For each of these reasons I find that the applicant’s substantive application has no reasonable prospects of success.
I therefore make the orders set out at the commencement of these written reasons.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 2 February 2023
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