FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKO17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2022 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in dismissing the applicant’s application under s.426A(1A)(b) of the Migration Act 1958 (Cth) – whether applicants were correctly notified of the Administrative Appeals Tribunal hearing – whether applicants were correctly notified of the Administrative Appeals Tribunal’s non-appearance decision – whether Administrative Appeals Tribunal’s decision to reinstate was affected by legal unreasonableness – jurisdictional error found – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.31, 36, 65, 411, 422B, 424A, 424AA, 425, 425A, 426A, 426B, 430, 441A, 441C, 474, 476 Migration Regulations 1994 (Cth), regs.2.01, 4.35D, sch.1. Treaties: Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967). |
| First Applicant: | AKO17 |
| Second Applicant: | AKP17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3392 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 25 July 2018 |
| Date of Last Submission: | 25 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2018 |
REPRESENTATION
| The Applicant appeared in person with the assistance of an interpreter. | ||
| Solicitors for the Respondents: | Mr Julian Pinder (Minter Ellison) | |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3392 of 2016
| AKO17 |
First Applicant
AKP17
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
(As Corrected)
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 8 November 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the…
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Details
- Case
- [2018] FCCA 2022
- Decision Date
CaseChat Overview and Summary
The applicants sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) to dismiss their application for protection visas. The Tribunal had dismissed the application under paragraph 426A(1A)(b) of the Migration Act 1958 (Cth) because the applicants failed to attend a scheduled hearing. The applicants subsequently applied for reinstatement, providing an explanation for their non-attendance, which the Tribunal ultimately refused to grant.
The central legal issues before the Court were whether the Tribunal's decision to dismiss the application and its subsequent refusal to reinstate it were affected by jurisdictional error. Specifically, the Court was required to determine if the Tribunal had properly applied the provisions of section 426A and section 426B of the Act, and whether the applicants had been afforded procedural fairness. The Court also considered the effect of section 474(2) of the Act, which renders decisions of the Tribunal final and conclusive unless affected by jurisdictional error.
Emmett J reasoned that the Tribunal's decision was made in accordance with the law. The Tribunal had followed the procedural requirements of section 426B by making a written statement of its decision and reasons. The applicants had been notified of the dismissal decision and the opportunity to seek reinstatement. The Tribunal's refusal to reinstate the application was based on its finding that the applicants had not provided a reasonable explanation for their non-attendance, a finding that was open to the Tribunal on the evidence before it. The Court noted that disagreement with the Tribunal's findings of fact does not, of itself, constitute jurisdictional error.
The application for judicial review was dismissed.
The central legal issues before the Court were whether the Tribunal's decision to dismiss the application and its subsequent refusal to reinstate it were affected by jurisdictional error. Specifically, the Court was required to determine if the Tribunal had properly applied the provisions of section 426A and section 426B of the Act, and whether the applicants had been afforded procedural fairness. The Court also considered the effect of section 474(2) of the Act, which renders decisions of the Tribunal final and conclusive unless affected by jurisdictional error.
Emmett J reasoned that the Tribunal's decision was made in accordance with the law. The Tribunal had followed the procedural requirements of section 426B by making a written statement of its decision and reasons. The applicants had been notified of the dismissal decision and the opportunity to seek reinstatement. The Tribunal's refusal to reinstate the application was based on its finding that the applicants had not provided a reasonable explanation for their non-attendance, a finding that was open to the Tribunal on the evidence before it. The Court noted that disagreement with the Tribunal's findings of fact does not, of itself, constitute jurisdictional error.
The application for judicial review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
The factual background and the Tribunal’s decision are accurately summarised in the submissions of the first respondent as follows:“B FACTUAL BACKGROUND4. On 17 October 2014 the applicants lodged an application for Protection (Class XA) visas (protection visas) (CB1–37).5. On 9 April 2015 a delegate of the first respondent (the delegate) refused to grant the applicants protection visas (CB57–82; esp. CB69–82).6. On 29 April 2015 the applicants sought review of the delegate's decision before the Tribunal (CB93–94). In the application form, under the heading 'Correspondence details', the applicants provided an email address: evahong6473@hotmail.com (the email address) (CB94).7. On 21 December 2015 the applicants lodged a Change of Contact Details—MR Division form with the Tribunal form with the Tribunal (CB104–105). In that form the applicants provided new contact details. However, they provided the same email address as in their application form—being the email address (CB104).8. On 5 February 2016 the applicant lodged two Form 929—Change of address and/or passport details forms (the Form 929s) by email with the first respondent's department (the department) (CB83–87). In those Form 929s (each in respect of one of the two applicants), in answer to Question 9, the applicants agreed to the department communicating with them by fax, email or other electronic means, and provided an email address—being the email address (CB84, CB86).9. On 16 February 2016 the applicants lodged further documents with the department by email (CB88–92), including two further copies of the Form 929s (cf. Court Book index at pp 2–3 at item 8).10. On 16 September 2016 the Tribunal invited the applicants to attend a hearing on 14 October 2016 (CB109–118). That invitation was sent by email to the email address (CB109).11. The applicants did not attend the hearing on 14 October 2016 (CB119).12. On 17 October 2016, the Tribunal dismissed the application under paragraph 426A(1A)(b) of the Act as the applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing (the non appearance decision) (CB120).13. On 18 October 2016, the Tribunal sent the applicants a copy of the non appearance decision by email to the email address (CB121–124). The cover letter enclosing the non appearance decision stated that the applicants may apply to the Tribunal in writing for reinstatement of the application by 1 November 2016 (CB122).14. On 30 October 2016 the applicants applied for reinstatement of the application by setting out reasons for non-attendance in an email sent from the email address (the reinstatement application) (CB125). The applicants' explanation was that the first applicant was sick on the morning of the hearing and her husband took her to the doctor. She did not have time to call the Tribunal, because the hearing was listed for 9.30am.15. On 31 October 2016 a case officer of the Tribunal called the first applicant (through an interpreter) and requested that she provide a medical certificate that demonstrated that she was unable to attend the hearing, and that the explanation for non attendance in the reinstatement application, without adequate evidence, was insufficient (CB126).16. On 8 November 2016 the Tribunal confirmed the decision to dismiss the application under subsection 426A(1C) of the Act (the confirmation decision) (CB131–132).17. On 9 November 2016 the Tribunal sent a copy of the confirmation decision by email to the email address (CB127–132).C TRIBUNAL DECISION18. The Tribunal affirmed the decision to dismiss the application because the applicant failed to provide a reasonable explanation for her non-attendance at the Tribunal hearing. The Tribunal found that the applicant's explanation was not reasonable for the following reasons (CB132 at [6]):(a) the applicant would have obtained a medical certificate if she were too sick to attend;(b) the applicants should have contacted the Tribunal on the day of the hearing or in the days following the hearing to provide an explanation; and(c) in absence of medical evidence and any contemporaneous contact, the Tribunal did not accept that the applicant was sick or attended the doctor as claimed.19. As such the Tribunal was not satisfied that the applicants had provided a reasonable explanation for their non appearance, and the Tribunal did not consider it appropriate to reinstate the application (CB132 at [6]).”
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 426B is as follows:“Failure to appear--Tribunal's decisions, written statements and notifying the applicant Decisions to which this section applies (1) This section applies in relation to the following decisions (each of which is a non-appearance decision ): (a) a decision to dismiss an application under paragraph 426A(1A)(b); (b) a decision to reinstate an application under paragraph 426A(1C)(a) and to give directions (if any) under that paragraph. Note: For similar provisions applying to a decision to confirm the dismissal of an application under section 426A, see sections 430 and 430A. Written statement of decision (2) If the Tribunal makes a non-appearance decision, the Tribunal must make a written statement that: (a) sets out the decision; and (b) sets out the reasons for the decision; and (c) in the case of a decision to reinstate an application: (i) sets out the findings on any material questions of fact; and (ii) refers to the evidence or any other material on which the findings of fact were based; and (d) records the day and time the statement is made. (3) A non-appearance decision is taken to have been made: (a) by the making of the written statement; and (b) on the day, and at the time, the written statement is made. (4) The Tribunal has no power to vary or revoke a non-appearance decision after the day and time the written statement is made. Note: However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 426A(1D)). Notice to applicant (5) The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant: (a) within 14 days after the day on which the decision is taken to have been made; and (b) by one of the methods specified in section 441A. (6) In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F). […]” Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). The Applicant was unrepresented before the Court, although had the assistance of an interpreter. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
Ratio Decidendi
Legal Principle Established
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