AKI17 v Minister for Immigration

[2017] FCCA 2917

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKI17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2917

Catchwords:
MIGRATION – Protection visa application – review of Administrative Appeals Tribunal decision – whether the Tribunal complied with the Migration Act 1958 (Cth) in inviting the applicant to attend a hearing – whether the Tribunal was empowered to dismiss the application for non-appearance – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 426A, 426B, 430, 441A, 441C, pt.7

Applicant: AKI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 286 of 2017

Judgment of: Judge Smith

Hearing date: 17 October 2017

Date of Last Submission: 17 October 2017

Delivered at: Sydney

Delivered on: 17 October 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 286 of 2017

AKI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant arrived in Australia on 3 January 2013 and lodged an application for a protection visa on 7 May 2014. He was invited to an interview to be conducted by an officer of the Department of Immigration and Border Protection, but he did not attend the interview. On 9 February 2015, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The reasons for that decision were sent to the applicant at PO Box 1161, Auburn NSW 1835.

2. The applicant then applied to the Refugee Review Tribunal[1] (Tribunal) for review of the delegate’s decision.  In that application, the applicant requested that correspondence about the application be sent to him at PO Box 1161, Auburn NSW 1835.  He indicated that he did not agree to the Tribunal sending correspondence by email. 

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

3. On 17 November 2016, the Tribunal wrote to the applicant inviting him to attend a hearing to be conducted on 15 December 2016.  That letter was sent on the same day by ordinary post addressed to the applicant at PO Box 1161, Auburn NSW 1835: that is, to the address given by him in connection with his application for review for receiving correspondence from the Tribunal.

4. The applicant did not attend the hearing and by letter dated 16 December 2016, again addressed to the applicant at the post office box previously referred to, the Tribunal stated the following:

   …

   As you failed to attend the scheduled hearing, we have decided to dismiss your application for review. 

   A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications. 

   You may apply to us, in writing, for reinstatement of the application by 12 January 2017. …

   (Emphasis in original)

5. The applicant did not respond to that letter and made no application for reinstatement. In light of that, on 16 January 2017 the Tribunal again wrote to the applicant, by letter addressed to him at the post office box referred to above, stating that the decision to dismiss his application for review was confirmed, and enclosing a statement of reasons for that decision. The statement of reasons enclosed with that decision state relevantly at [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. 

6. The relevant statutory scheme that was applied by the Tribunal in this case is found in s.426A(1A) of the Migration Act 1958 (Cth) (Act).  That scheme, in short, provides that the Tribunal has two options available if the applicant does not appear at the scheduled date and time of the hearing to be conducted: 

   a)first, it may, by written statement under s.430 of the Act, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

   b)secondly, it may by written statement under s.426B of the Act, dismiss the application without any further consideration of the application or information before the Tribunal.

   The Tribunal took the second of those options.

7. Section 426A(1B) of the Act provides that an applicant may, within 14 days after receiving notice of the decision under s.426B, apply to the Tribunal for reinstatement of the application. However, s.426A(1E) provides that if the applicant fails to apply for reinstatement within the 14 day period mentioned in s.426A(1B), the Tribunal must confirm the decision to dismiss the application by written statement under s.430 of the Act.

8. Section 426A(1F) of the Act provides that if the Tribunal confirms a decision to dismiss the application, the decision under review is taken to be affirmed. Section 426B(5) provides for the manner in which the applicant is to be notified of the decision for non-appearance. Relevantly, that notice must be given within 14 days after the day on which the decision is taken to have been made and by one of the methods specified in s.441A of the Act.

9. One of the methods specified in s.441A is dispatch by prepaid post or by other prepaid means. Section 441A(4) provides:

   (4)Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:

   (a)within 3 working days (in the place of dispatch) of the date of the document; and

   (b)by prepaid post or by other prepaid means; and

   (c)to:

   (i)     the last address for service provided to the Tribunal by the recipient in connection with the review; or

   (ii)     the last residential or business address provided to the Tribunal by the recipient in connection with the review; or

   (iii)   if the recipient is a minor--the last address for a carer of the minor that is known by the member or officer.

10. Section 441C of the Act operates so that if one of the methods in s.441A has been followed, a person is taken to have received the relevant document: in this case, 7 working days after the date of the document.

11. Those provisions relating to the giving and receiving of documents by the Tribunal relate also to the notice of invitation given pursuant to s.425 of the Act. On the facts of this case, I am satisfied that the applicant was properly invited to attend a hearing by letter dated 17 November 2016 and that when he failed to attend at the time and date scheduled for that hearing, the Tribunal was empowered to dismiss the application for review for that reason alone. Further, I am satisfied that the Tribunal notified the applicant of the non-appearance decision pursuant to s.426B(5) and that the applicant failed to make an application for reinstatement of the application.

12. In those circumstances, the decision made by the Tribunal on 13 January 2017 was within the authority granted by the Act.  The applicant seeks judicial review of that decision. 

Consideration

1. There are six separate paragraphs which could be taken to be grounds of the review.  The applicant appeared unrepresented today at the hearing and stated that he did not understand anything about this application, and in particular, that he did not know what was in the application.  He explained that he had found a friend on the internet who had lodged the document for him.

Ground 1

1. The applicant was unable to elucidate any meaningful ground of review today at the hearing.  The first ground in the application is relevantly that the Tribunal’s decision was not “fair and reasonable as they failed to take a good consideration of the risk for me to return to my home country.”  The Tribunal’s decision was made, as I have explained already, not on the basis of any consideration of the claims made by the applicant in support of his protection visa application, but because of his failure to attend at the hearing.

2. As I have explained, it was open to the Tribunal to do that pursuant to sub-s.426A(1A)(b) of the Act.  Therefore, this ground does not raise any jurisdictional error. 

Ground 2

1. The second ground fails for the same reason.  It asserts that the Tribunal “did not consider my paper statement in a careful way.”  I take the reference to “paper statement” to be the statement by the applicant written in both Chinese and English lodged in support of his protection visa application.  However, the Tribunal did not have to consider that given the applicant’s failure to attend the hearing.

Ground 3

1. The third ground is that the applicant could not attend the hearing due to his sickness and that he never received the letter for the hearing. The applicant also contends that the Tribunal should have considered his paper submission and not just dismissed his review application. The last aspect of this ground is repetitious of the first two and I say nothing further about it. The first part of the ground appears to have some internal tension. Nevertheless, assuming that the applicant complains that even if he had received the letter he would have been unable to attend because of sickness, I am sceptical of that factual claim simply because the applicant does not make it himself.

2. Rather, it appears to have been included in the application by somebody without even telling the applicant of that inclusion. In any event, the point is, as I have endeavoured to explain, that it was open to the Tribunal on the mere absence of the applicant from the hearing to dismiss the application. He had the opportunity after that time to apply for reinstatement, but he did not take that opportunity. That opportunity overcame any potential unfairness that would have resulted from his inability to attend the Tribunal hearing.

3. The applicant does not say that he was unable to reply to the invitation to apply to reinstate.  For that reason, the third ground does not raise any jurisdictional error. 

Ground 4

1. The fourth ground, although it again is numbered 1, states that the applicant is a Chinese citizen that has been involved in church activities in Australia. That is a claim that has nothing to do with the jurisdiction of the Tribunal and it is not something that could establish that the Tribunal somehow went beyond the proper exercise of its powers.

Ground 5

1. The fifth ground is that the Tribunal unreasonably suspected the truthfulness of the applicant’s claims just because of the absence of evidence. That ground cannot be addressed to the Tribunal, who did not have regard to the applicant’s evidence or lack of evidence at all. It could be addressed to the delegate’s decision, because one of the bases of the delegate’s decision was the absence of evidence, and the failure of the applicant to attend the interview to which he was invited. However, this Court does not have the power to review the delegate’s decision because it is a primary decision within the meaning of the Act, being susceptible to a review under pt.7 of the Act.

Ground 6

1. The final ground, also numbered [3], is that the Tribunal “should not dismiss my review application since I have not received their hearing notice”. Whether or not the applicant did in fact receive the hearing notice, he was, by operation of s.441C of the Act, taken to have received it. It is on the basis of that provision that I am satisfied that it was within the power of the Tribunal to dismiss the application for review simply on the basis of the applicant’s failure to attend at the hearing.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision.  The application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       28 November 2017