Akz20 v Minister for Immigration
[2020] FCCA 2412
•28 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKZ20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2412 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – dismissal for non-attendance at Tribunal hearing – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.441A, 441C, 426A, 426B |
| Cases cited: AYT16 v Minister for Immigration (2017) 71 AAR 491 AZAFB v Minister for Immigration [2015] FCA 1383 CER15 v Minister for Immigration [2016] FCA 1057 SZOBI v Minister for Immigration (No. 2) (2010) 119 ALD |
| Applicant: | AKZ20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 213 of 2020 |
| Judgment of: | Judge Driver |
| Date of Last Submission: | 28 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2020 |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondents: | Mr Valliappan |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 213 of 2020
| AKZ20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Background and introduction
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 13 January 2020. The Tribunal dismissed the review application before it on account of the non-attendance of the applicant. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 13 August 2020, which I adopt.
The applicant is a citizen of China who last arrived in Australia on 6 January 2017 as the holder of a tourist visa. On 11 January 2017 he lodged an application for a protection visa.
The applicant was invited to attend an interview before a delegate of the Minister (delegate) which he did not attend. On 17 March 2017 the delegate refused to grant the applicant the visa.
On 4 April 2017, the applicant lodged an application for merits review with the Tribunal. The applicant provided a post office box address, email address and mobile phone number under the heading “Correspondence details” on the application form.
On 17 December 2019 the Tribunal invited the applicant to appear before it on 13 January 2020 to give evidence and to present arguments relating to the issues in his case. That invitation was sent to the email address set out in his application to the Tribunal and relevantly noted the following:
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. 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.
On 6 January 2020 and 10 January 2020 the Tribunal sent SMS hearing reminders to the applicant's mobile phone number as set out in his application to the Tribunal; however, delivery failed on each occasion.
On 13 January 2020, the applicant did not attend the scheduled hearing and so the Tribunal dismissed the application under s.426A(1A)(b) of the Migration Act 1958 (Cth) (Migration Act).
On 6 February 2020, that decision was confirmed under s.426A(1E) of the Migration Act after the applicant failed to apply for reinstatement.
Tribunal decision
The Tribunal noted that the applicant had been invited to the hearing under s.425 of the Migration Act and that the invitation stated that if he did not appear it may dismiss his application without any further consideration. Further, it noted that SMS reminders were sent to the applicant a work week before and the day before the scheduled hearing.[1]
[1] Court Book (CB) 129 at [1]
On the evidence before it, the Tribunal was satisfied the applicant was properly invited to a hearing in according with s.441A(5), that that invitation had not been returned to sender and that SMS reminders about the hearing were sent on two separate occasions.[2] In those circumstances, it decided to dismiss the application for non-appearance.[3]
[2] CB 129 at [2]
[3] CB 129 at [3]
Confirmation decision
The Tribunal noted that the applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision in accordance with s.426B(5) of the Migration Act. Further, it noted that the applicant was advised that he could apply for reinstatement within 14 days but that if he failed to do so this would result in confirmation of the dismissal decision.[4] The Tribunal found the applicant did not apply for reinstatement and so affirmed the decision under review.[5]
[4] CB 129 at [3]
[5] CB 129 at [4]–[5]
Application for judicial review
These proceedings began with a show cause application filed on 31 January 2020. The grounds in it are:
1. The Tribunal officer refused my application because I could not provide enough evidence to support my claims.
2. The Tribunal officer did not accept that I was persecuted by Chinese government.
3. The Tribunal officer did not consider the national conditions of China.
4. I have left China for such a long time and can not provide more evidence for my claims.
5. If I return back to China, I will be harmed again.
The application is supported by a short affidavit filed with it, which I received. I also have before, me as evidence, the court book, filed on 16 April 2020. Only the Minister filed pre-hearing written submissions in accordance with procedural orders made by a registrar. I invited oral submissions from the applicant this morning. He initially appeared rather confused. He raised concerns about his bridging visa.
When I directed the applicant’s attention to his failure to attend the Tribunal hearing, he insisted that he did attend. It turned out that he was referring to the first court date hearing in this Court before a registrar. The applicant ultimately conceded that he did not attend the Tribunal hearing but insisted that he did not receive an invitation. The Tribunal sent an invitation on 17 December 2019 to the applicant’s nominated email address.[6] There is no indication that the applicant failed to receive that email.
[6] CB 105
SMS reminders were sent on 6 January 2020 and 10 January 2020. Both failed. The reason for that is unknown. It appears that the SMSs were sent to the applicant’s nominated mobile telephone number. The applicant was informed of the dismissal of his review application by a letter dated 14 January 2020 sent to his email address. He was invited to apply for reinstatement by 28 January 2020. He did not do so. Instead, he applied to the Court for judicial review. In the circumstances, when the Tribunal made its confirmation decision on 6 February 2020, there was only one decision it could make.
I see no arguable case of jurisdictional error in relation to the process followed by the Tribunal. The Minister’s submissions deal with the grounds of review advanced. I agree with those submissions, and adopt them.
Grounds 1–5
The applicant's grounds are misconceived in circumstances where the Tribunal did not substantively consider the merits of the applicant's claims but rather dismissed his matter for non-appearance. Insofar as the applicant seeks to challenge the findings of the delegate, this Court does not have jurisdiction in relation to a reviewable primary decision.[7]
[7] S.476(2)(a) of the Act and COJ18 v Minister for Home Affairs [2018] FCCA 1563 at [3] per Judge Driver
Dismissal decision
The Tribunal's dismissal decision and confirmation decision are migration decisions and therefore are both capable of being challenged on review.[8]
[8] Sharma v Minister for Immigration [2017] FCCA 966 at [18] per Judge Driver. Further, s.426A(1A) contains a discretionary power which must be exercised reasonably: Hanspal v Minister for Immigration [2018] FCCA 1408 at [46] per Judge Nicholls and the cases cited therein
For the following reasons, the Tribunal did not act unreasonably in proceeding to dismiss the application under s.426A(1A)(b) of the Migration Act:
a)first, the Tribunal invited the applicant to a hearing under s.425 of the Migration Act. That invitation gave the applicant notice of the day, time and place at which he was scheduled to appear and contained a statement of the effect of s.426A of the Migration Act.[9] Further, it was sent more than 14 days prior to the scheduled hearing in accordance with regulation 4.35D of the Migration Regulations 1994 (Cth) (Migration Regulations);
b)secondly, under s.441A(5)(b) of the Migration Act, the Tribunal was entitled to transmit the invitation by way of email. The invitation was sent to the last email address the applicant provided to the Tribunal in connection with his review.[10] In accordance with s.441C(5), the applicant was taken to have received the invitation for hearing at the end of the day in which it was transmitted irrespective of actual receipt;[11]
c)thirdly, the Tribunal sent two SMS reminders to the applicant of the hearing to his last mobile phone number provided. Clearly enough, the Tribunal had made attempts to contact the applicant. Although delivery of those messages ultimately failed, in the circumstances, “it is difficult to imagine what else the Tribunal could or ought to have done in that regard”;[12] and
d)fourthly, the applicant had not engaged with the Tribunal in any substantive way. Other than his application, the applicant's only correspondence with the Tribunal was an email on 8 April 2017 in which he requested a letter so he could apply for a Medicare card.[13]
[9] see ss.425A(1) and (4) Migration Act
[10] see s.441A(5)(d)
[11] see SZOBI v Minister for Immigration (No. 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [18]–[19] per Stone and Jagot JJ
[12] Kumar v Minister for Immigration [2019] FCA 157 at [19] per O'Callaghan J; see also CER15 v Minister for Immigration [2016] FCA 1057 at [42] per Markovic J
[13] cf. AZAFB v Minister for Immigration [2015] FCA 1383 at [24] per North ACJ
Confirmation decision
The applicant in his affidavit accompanying his application only annexes the dismissal decision of the Tribunal. In fact, his application for judicial review was made before the Tribunal even made its confirmation decision. In any event, the Tribunal was correct to make the confirmation decision:
a)first, the applicant was notified of the dismissal decision the following day it was made (thus within the required 14 days) and by one of the methods specified in s.441A of the Migration Act.[14] Further, the information sheet which accompanied the notification and dismissal decision properly set out statements describing the effect of ss.426A(1B) to (1F).[15] Of note, that included that the applicant could make an application for reinstatement within 14 days of being notified of the decision[16] but that if he failed to do so, the Tribunal “must” confirm the decision to dismiss;[17] and
b)secondly, the time limit on a reinstatement application runs from the time of deemed notification under s.441C(5) of the Migration Act, not from the time the applicant was actually made aware of or personally received a copy of the notification of the dismissal decision.[18] In circumstances where the applicant failed to apply for reinstatement within 14 days of deemed notification, the Tribunal was, under s.426A(1E) of the Migration Act, required to confirm the decision to dismiss the application.[19]
[14] s.426B(5) Migration Act
[15] s.426B(6) Migration Act
[16] s.426A(1B) Migration Act
[17] s.426A(1E) Migration Act
[18] Haq v Minister for Immigration [2018] FCCA 683 at [45] per Judge Barnes
[19] AYT16 v Minister for Immigration (2017) 71 AAR 491; [2017] FCA 252 at [9]–[10] per Perram J
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. The applicant expressed his disagreement with my decision and raised some questions concerning next steps. He did not specifically address the issue of costs.
I will therefore order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 September 2020
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