Ali v Minister for Immigration
[2018] FCCA 3461
•22 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3461 |
| Catchwords: MIGRATION – Application in a case for reinstatement of substantive application – application dismissed for non-appearance – where Applicant failed to appear before the Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 44.15, 21.10 Migration Act 1958 (Cth), ss.360, 362B, 362C, 368 Migration Regulations 1994 (Cth), Schedule 2, cls.801.221, 820.211, Schedule 3, cl.3001 |
| Cases cited: Malecaj v Minister for Immigration and Border Protection [2016] FCA 1508 MZZTC v Minister for Immigration and Border Protection [2015] FCA 120 |
| Applicant: | MUHAMMAD ARSLAN ALI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1244 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 22 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 22 November 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Mr Hibbard |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application in a case filed 11 October 2018 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $2,172 in accordance with rr.44.15(3), 21.10 and items 3 and 13 of Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1244 of 2017
| MUHAMMAD ARSLAN ALI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court this day is an application in a case filed by the Applicant on 11 October 2018 wherein the Applicant seeks reinstatement of his substantive application filed 13 June 2017 seeking judicial review of the decision of the Second Respondent (‘the Tribunal’) made on 9 May 2017. The Tribunal made a decision, pursuant to s.362B(1E) of the Migration Act 1958 (Cth) (‘the Act’) to confirm its decision made pursuant to s.362B(1A)(b) of the Act on 19 April 2017.
The Applicant failed to appear at the hearing of his substantive application on 3 September 2018. Accordingly, the Court dismissed the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) and made an order that the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
The Applicant’s application in a case filed on 11 October 2018 was accompanied by a supporting affidavit filed on that same date.
The First Respondent opposes the orders as sought by the Applicant in his application in a case, the subject of these proceedings.
In his affidavit sworn 11 October 2018, the Applicant does not explicitly state why he did not appear at the hearing on 3 September 2018. However, impliedly, he asserts that he was prevented from appearing by illness. He refers to an email sent by him to the Court and to the First Respondent’s solicitors at 5.00pm on Friday 31 August 2018 in which he stated:-
“I will not be able to attend the hearing on 3 September 2018 at 2.15 pm due to a medical condition that requires investigation which will require an adjournment until after 10 September 2018. When I get my results I will let you know.”
Attached to the email request for an adjournment of the following Monday’s hearing, the Applicant annexed various documents which, in his affidavit sworn 11 October 2018, he referred to as “medical documents”. Whilst the Applicant did not, in fact, attach the medical documents to his affidavit of 11 October 2018, that was clearly an oversight on his part and he was given leave in the course of these proceedings to introduce into evidence the medical documents that had accompanied his request to the Court and to the First Respondent for an adjournment of the proceedings on 3 September 2018.
The “medical documents” included a medical certificate from Dr Huy Tan Nguyen completed on 31 August 2018 which stated:-
“This is to certify that [the Applicant] has a medical condition and will be unfit for work or study from Friday, 31 August 2018 to Monday 10 September 2018 inclusive.”
Additionally included were a Clinical Labs general pathology request form pertaining to the Applicant undergoing a blood test, with the clinical notes being “health check tiredness”; a Richmond Family Medical Clinic receipt for the Applicant’s attendance upon Dr Huy Tan Nguyen in respect of a payment by the Applicant of $50; and a referral for the Applicant from Dr Huy Tan Nguyen to Dr David Cunnington being a sleep apnoea diagnostic referral.
On 31 August 2018 the First Respondent’s solicitors replied by email to the Applicant’s email. In their email, the solicitors:-
a)noted they were instructed not to consent to an adjournment of the hearing, on the basis that the Applicant’s request and medical evidence:-
i)did not address the severity of the Applicant’s condition; and
ii)did not explain why the Applicant would be unable to attend the hearing; and
b)informed the Applicant that, subject to any order of the Court, he was still required to attend the hearing on 3 September 2018.
The First Respondent’s solicitors did not receive a response from the Applicant and the Applicant did not attend the hearing on 3 September 2018 at 2.15pm.
The Court considered the Applicant’s reasons for not attending the hearing to be wholly inadequate. The materials provided by the Applicant did not contain sufficient information to have any “meaningful” bearing on the Applicant’s claimed inability to appear, as that term was used by Pagone J in MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 when summarising the decision of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, wherein Lindgren J considered the circumstances in which a medical certificate could be used to justify an Applicant’s inability to appear in Court. His Honour described, at paragraph six, the need for the medical certificate to address the “critical question” being:-
“whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.”
Or as Pagone J later said, the certificate must contain:-
“…material that establishes why it is, or how it is, that an appellant suffering from a medical condition would be unfit for participation at a hearing in court.”[1]
[1] MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209, 2.
Whilst the Court finds that there was, and is, no adequate reason for the Applicant’s failure to attend Court on 3 September 2018, the Court also finds that it is not in the interests of the administration of justice for the application to be reinstated because the substantive application is not arguable.
The final orders as sought by the Applicant and the grounds of application are as set out in annexure A to these reasons for judgment. The First Respondent sought dismissal of the substantive application and costs.
On 20 August 2018, the First Respondent filed an affidavit of Mr Jarrod Rubin Blusztein affirmed that day. Mr Blusztein deposes to having sent the Applicant a letter dated 23 March 2018 (exhibited at JRB‑1) which:-
a)invited the Applicant to amend the application to allow him to seek judicial review of both the confirmation decision and the non‑appearance decision as both decisions were relevant to the application; and
b)noted that the Minister would consent to the necessary extension of time to allow the Applicant to amend the application.
The Applicant did not amend his application to seek judicial review of both the confirmation and the non‑appearance decisions. The application is incompetent in that regard.
Background
The Applicant first arrived in Australia on 28 January 2011 on a student (subclass 472) visa. That visa ceased on 12 June 2013.
The Applicant lodged an application for a protection (Class XA) visa on 13 June 2013, with that application being refused by a delegate of the Minister on 12 November 2014. The Applicant sought review of the decision of the delegate with the then Refugee Review Tribunal on 5 December 2014 but withdrew his application on 24 February 2016. He had, in the interim, lodged an application for a partner visa on 19 January 2016. That application was found to be invalid on 21 January 2016.
On 2 February 2016, the Applicant applied for:-
a)a partner (Temporary) (Class UK) (subclass 820) visa (‘temporary visa’); and
b)a partner (Residence) (Class BS) (subclass 801) visa (‘permanent visa’) (together, ‘the visas’).
The Applicant applied for the visas on the basis of his relationship with an Australian citizen who was his sponsoring partner for the purposes of the application. By email dated 8 February 2016, the Department of Immigration and Border Protection (‘the Department’) requested that the Applicant provide further documents in support of his application for the visas. By email dated 5 March 2016, the Applicant informed the Department that he would provide further documents to the Department as soon as possible and stated that he would attend a medical examination.
By letter dated 5 July 2016, the Department informed the Applicant that:-
a)he did not satisfy cl.3001 of Schedule 3 to the Migration Regulations 1994 (Cth) (‘the Regulations’) as he did not apply for the visas within 28 days of the cessation of his last substantive visa; and
b)as such, he was required to demonstrate compelling reasons for not applying cl.3001 of Schedule 3 to the Regulations.
The letter also requested that the Applicant provide further evidence of his relationship with his sponsoring partner.
By email dated 4 August 2016, the Applicant requested an extension of two weeks to provide evidence in support of his application.
By email dated 8 August 2016, the Department informed the Applicant that:-
a)no further extensions had been granted;
b)the application for the visas had not yet been allocated to a case officer;
c)if the Applicant had a change in circumstances or any further information to provide prior to a decision being made, he was invited to provide that information and it would be considered by the case officer; and
d)he should provide any such information as soon as possible.
By email dated 29 September 2016, the Applicant informed the Department that on that same day he had posted documents to the Department and would send further documents after the weekend. Documents were subsequently received by the Department.
On 17 October 2016, a delegate of the Minister:-
a)refused the Applicant’s temporary visa application because the Applicant did not meet the criteria in cl.820.211 in Schedule 2 to the Regulations as he did not satisfy the criteria in cl.3001 in Schedule 3 to the Regulations and there were not compelling reasons to not apply cl.3001; and
b)refused the Applicant’s permanent visa application because he did not meet the requirements of cl.801.221(2), (2A), (3), (4), (5) or (6) of Schedule 2 to the Regulations, which required the Applicant to be the holder of a temporary visa (together, ‘the delegate’s decision’).
On 2 November 2016, the Applicant applied to the Tribunal for review of the delegate’s decision not to grant the visas. The Applicant provided the following correspondence details:-
a)the email address, “[email protected]” (Applicant’s email address);
b)the mobile phone number “0426 297 999” (Applicant’s mobile number); and
c)the postal address (23 Glover Street, East Bentleigh, Victoria 3165) (Applicant’s postal address).
The Tribunal, by correspondence of 4 November 2016 acknowledged receipt of the applications.
By email dated 22 February 2017 sent to the Applicant’s email address, the Tribunal invited the Applicant to attend a hearing on 10 April 2017 in Melbourne.
On 24 February 2017, the Applicant telephoned the Tribunal and advised that he had received the hearing invitation.
By letter dated 28 February 2017, the Department advised the Applicant relevantly as follows:-
“Please note that as your application is currently at the Migration Review Tribunal (MRT) it is your responsibility to inform the area of your travel dates as there is a possibility that you may be contacted for an interview.”
By response to hearing invitation dated 8 March 2017, the Applicant indicated to the Tribunal that he and his sponsoring partner would be taking part in the Tribunal hearing.
On 3 and 7 April 2017, the Tribunal sent the following text message to the Applicant’s mobile number:-
“Reminder – your AAT hearing is on 10/4/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.”
Delivery of both messages “failed”.
On 10 April 2017, the Tribunal dismissed the Applicant’s application under s.362B(1A)(b) of the Act as the Applicant did not appear before the Tribunal at the scheduled time and place and the Tribunal determined no satisfactory reason for the non‑appearance had been given.
By email dated 24 April 2017, the Tribunal provided notification of its decision to dismiss the application to the Applicant and for reason of his non‑appearance. That correspondence also stated, relevantly:-
“You may apply to us, in writing, for reinstatement of the application by 8 May 2017. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
If you have any questions, please email … or contact me on the number listed below, or telephone our national inquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”
Attached to the correspondence was a document entitled “Information about dismissal of applications – MR Division”.
By email from the Tribunal to the Applicant dated 9 May 2017, the Tribunal confirmed the decision to dismiss the Applicant’s application for review. The Tribunal attached a copy of its Statement of Decision and Reasons (‘the Decision Record’) along with an information sheet about dismissal of applications. In the Decision Record of the Tribunal of 9 May 2017, the Tribunal said, relevantly:-
“2. On 10 April 2017 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The review 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.362C(5). The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4. As the review 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.
Decision
5. The Tribunal confirms the decision to dismiss the application.”
Consideration
The matters which arise with respect to the grounds of review as set out in the Applicant’s application are whether the Tribunal denied the Applicant procedural fairness and/or whether the Tribunal made an error of law or acted unreasonably.
There is nothing in the evidence before the Court to indicate that the Tribunal failed to comply with any of the natural justice requirements in Part 5, Division 5 of the Act.
In ground 4 of his application, the Applicant appears to allege that he requested that the Tribunal hearing be adjourned. The Applicant exhibited to his supporting affidavit, upon the filing of his application, what appears to be an email that he sent on 5 April 2017 to “Carolyn” (in the Department) requesting that his “interview” on 10 April 2017 be rescheduled. This email appears to be sent as a “reply” to the email sent by “Carolyn” of the Department to the Applicant on 28 February 2017.
The correspondence sent by “Carolyn”, a Decision Support Unit Officer in the Temporary Partner Processing Centre in Victoria, Department of Immigration and Border Protection, was an email notifying the Applicant that the Department preferred contact concerning the Applicant’s application to be by email.
The email correspondence sent to “Carolyn” advised “Carolyn” that the Applicant would not be able to travel back to Melbourne until another three weeks from the date of his email being 4 May 2017, because of the Applicant’s mother having a stroke that day. The Applicant said:-
“…Am the only man in the family available to look after her right now I have to stay here until my father can come back from saudi arabia. A humble request to you is that would u be able to extend my interview date to next month sometimes?” (Errors in original).
There is no evidence before the Court that the Tribunal was made aware of the Applicant’s request, to “Carolyn”, for an adjournment. It cannot be found that the Tribunal failed to afford procedural fairness to the Applicant in proceeding to make a decision pursuant to s.362B(1A)(b) of the Act rather than adjourning the hearing, on this basis.
The Applicant was invited to a hearing pursuant to s.360 of the Act and he did not appear. The Tribunal had the power, in those circumstances, by written statement under s.362C of the Act to dismiss the application without any consideration of the application or information before the Tribunal.[2] Furthermore, the Tribunal’s statement dated 10 April 2017 complied with the requirements of s.362C(2) of the Act.
[2] Migration Act 1958 (Cth), s 362B(1A)(b).
By its email to the Applicant on 24 April 2017, the Tribunal complied with the requirements in s.362C(5) and (6) of the Act.
As the Applicant did not apply for reinstatement of the application, the Tribunal was required to confirm the dismissal of the application by written statement under s.368 of the Act.[3] The Tribunal’s Decision Record dated 9 May 2017 complied with s.368 of the Act.
[3] Migration Act 1958 (Cth), s 362B(1E).
It is apparent that the Tribunal correctly applied the law that was relevant to its decision, that being governed by s.362B of the Act.
Additionally, the Tribunal sent the Applicant an SMS message on both 3 and 7 April 2017 alerting the Applicant to the forthcoming hearing.
During the course of the proceedings, the First Respondent brought to the Court’s attention that the Tribunal had regard to the Department’s movement records on the day of the Tribunal hearing (‘movement records’). Those movement records demonstrated that the Applicant was offshore at the time of the Tribunal hearing and that his bridging visa was in effect until 28 April 2017, being some 14 days after the hearing date.
In those circumstances, the movement records raised the possibility that these proceedings were affected by the decision in Malecaj v Minister for Immigration and Border Protection [2016] FCA 1508 (‘Malecaj’). In that case, Pagone J held that the Tribunal unreasonably exercised its discretion to proceed to make a decision without taking further action to allow or enable the Applicant to appear before it, in circumstances where it was aware that the Applicant did not receive the hearing invitation and was unable to attend the hearing because he was lawfully and temporarily absent from Australia.
The Minister submits that these proceedings can however be distinguished from the decision in Malecaj [2016] FCA 1508 because:-
a)the Tribunal sent the Applicant an acknowledgement letter dated 4 November 2016 which stated if he decided to travel overseas he should advise the Tribunal of the approximate travel dates for his travel and his overseas contact details;
b)on 24 February 2017 the Applicant telephoned the Tribunal and indicated that he had received the hearing invitation;
c)on 28 February 2017, the Department informed the Applicant that he was responsible for informing the Tribunal of his travel dates as there is a possibility that he may be contacted for an interview. The letter also stated that for the relevant contact details, the Applicant should consult the letter he received from the Tribunal;
d)on 8 March 2017, the Applicant returned a response to hearing invitation form which indicated that he would attend the hearing on 10 April 2017; and
e)the Tribunal elected to dismiss the application for review under s.362B of the Act rather than to make a decision on the review and therefore the application was subject to a right to seek reinstatement. The Applicant did not make such an election.
The Court accepts the submission of the First Respondent that there is a clear distinction between the present case and the facts found in Malecaj [2016] FCA 1508. The Court finds that the Tribunal did not act unreasonably, in the circumstances of this case, in exercising its discretion to proceed to dismiss the application for review.
For all of the above reasons, the Court dismisses the application before it.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 3 December 2018
Annexure A
Final Orders sought by the applicant
An order that the decision of the tribunal, Immigration Assessment Authority or Minister be quashed.
A writ of mandamus directed to the tribunal, Immigration Assessment Authority or Minister, requiring them to determining the applicant’s application according to law.
The applicant wants his matter to be heard by the Tribunal in accordance with the natural justice.
Jurisdictional error by the Tribunal.
Grounds of application
Applicant applied for the extantion of time on 5 of April but due to his high level of stress he sent the email to DIBP instead of AAT. (evidence provided)
The reinstatement notice was sent but the applicant was in Pakistan taking care of his mother and had a difficulties of accessing his email, due to bad mobile coverage.
The matter is effected by procedural unfairness.
In applicants circumstances he couldn’t attend the hearing as he was overseas and he informed the Immigration but the department didn’t reply to inform him that he sent email to wrong place.
The matter that is mentioned above from paragraph (one to four) is about my case in AAT for partner visa. My case was dissmissed by AAT without hearing me because of non-appearance which was a result of changing in my circumstances while am overseas. I did try contacting the Department via email got confirmation by Immigration that they have received my email but no further reply from Immigration about it. Wether I am contacting the right place or what. I was not able to contact Immigration for awhile due to my mother was sick that got my attention and also did not know what else to do at that time. In the meantime AAT dissmissed my application without hearing me which I believe is procedural unfairness. (errors in original).
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