ALQ18 v Minister for Home Affairs

[2018] FCCA 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2020

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether it was legally unreasonable for the Tribunal to proceed to dismiss the application – whether the Tribunal complied with the requirements of procedural fairness – whether the Tribunal complied with its statutory obligations – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.426A, 441A, 476

Applicant: ALQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 243 of 2018

Judgment of: Judge Street

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.

Solicitors for the Respondents: Ms K Garaty
HWL Ebsworth

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 243 of 2018

ALQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 1 December 2017 to dismiss the application under s 426A(1)(b) of the Act, as the applicant did not appear before the Tribunal to give evidence and present arguments at the time and date of the scheduled hearing.

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 2 July 2014 and was the holder of a FA600 visitor visa. On 30 December 2014, the applicant applied for a Protection (Class XA) visa.

3. The applicant claimed to have discovered Christianity in Sydney and wished to remain in Australia so he could continue his practice. The applicant claimed that there was no such thing as Christianity in China. The applicant believed he would be considered morally wrong to believe in another belief besides Buddhism. The applicant claimed he would be exiled by his family and would not be able to practice his religion should he return to China. The applicant conceded that no one would harm him or mistreat him on return to China, but stated no one would understand and he would be emotionally harmed and torn.

4. On 24 August 2015, the delegate interviewed the applicant and the applicant made further claims. On 31 August 2015, the delegate found the applicant failed to meet the criteria for the grant of a Protection (Class XA) visa.

The Tribunal

1. On 27 September 2015, the applicant lodged an application for review to the Tribunal. On 28 September 2015, the Tribunal wrote to the applicant acknowledging receipt of the application for review. On 23 October 2017, the Tribunal wrote to the applicant inviting the applicant to attend at a hearing scheduled for 24 November 2017. That letter also explained that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter was sent, on its face, to the email address identified by the applicant on the application for review. The applicant failed to appear at the hearing.

2. On 4 December 2017, the Tribunal notified the applicant of its decision to dismiss the application, which was sent to the applicant’s email address as identified on the application. That decision identified that the applicant failed to appear and that the Tribunal was satisfied that the applicant was properly invited to attend a hearing in accordance with s 441A(5) of the Act and that the invitation had not been returned to sender and that no reason for the non-appearance had been given and that the Tribunal had decided, in the circumstances, to proceed to dismiss the application.

3. No further response was received from the applicant and on 8 January 2018, the Tribunal confirmed the decision to dismiss the application, having found the applicant was notified of the dismissal decision and given a written copy of the statement of reasons in accordance with s 426A(5) of the Act and having found that there was no reinstatement application that had been received within the timeframe and that, accordingly, the Tribunal must confirm the decision to dismiss the application.

Before this Court

1. The proceedings in this Court commenced on 1 February 2018. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation as given by the Court.

The grounds

1. In an attachment to the applicant’s affidavit, the applicant set out alleged grounds of error by the Tribunal. The grounds in substance appear to disagree with the Tribunal’s decision to confirm the dismissal in circumstances where the applicant had failed to appear. The grounds do not identify any jurisdictional error or any legal unreasonable exercise of power in the findings by the Tribunal.

2. The grounds are as follows:

   1. AAT have so many ways to handle my case but they did not.

   I was unable to attend AAT hearing. I am in very poor health. On the hearing day, I felt very bad and could not sit. I was afraid I might die. I have to ask my friend to come and pick up me to hospital. Luckily, they sent me to hospital immediately and I could pick up back to life. Under such a situation, I did not have time or could not inform of AAT that I was ill and unable to attend the hearing. AAT could not understand what my current situation at that time.

   2. AAT did not solve the problem just finish job.

   AAT had so many options to solve this problem. They should make a phone call to ask me about my case or reschedule my new hearing time. However, AAT rejected my so quick and immediately without asking me anything. They are irresponsible. They would like to finish the job quick not be duty to do the job.

   3. AAT should check the situation. So, it breach the provisions in the law.

   I should have right to comment on any adverse view. This is my right. I was denied such rights. I was not given opportunity to explain all aspects of my case. So, the Tribunal’s decision breached my right to natural justice.

   4. Making decision without humane.

   I believe Australia is a country that will protect the interests of disadvantaged groups, so I fled to Australia to seek help. However, I think that AAT is so unfair to me. AAT did not consider my practical situation and took it for granted that I could attend the hearing like others, which is really not humane.

3. No explanation is advanced or contention that the applicant was not notified in accordance with the statutory provisions and on the face of the material before the Court, the Tribunal complied with its statutory obligations in confirmation of the dismissal. The applicant had been given a reasonable opportunity to appear before the Tribunal and was on notice that the Tribunal could not make a favourable decision on the material that was before the Tribunal. The Tribunal’s reasons reflect an evident and intelligible justification for the adverse finding in the exercise of its statutory power.

4. The applicant’s desire to have been telephoned is not a proper basis upon which the decision of the Tribunal to proceed to confirm the dismissal could be found to be unreasonable, illogical or irrational. Whilst the applicant had suggested that he was unable to attend the hearing due to poor health, no evidence has been provided in support of the same and no explanation was advanced by the applicant having contacted the Tribunal, either before the hearing or after the hearing to explain the circumstances.

5. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the process leading up to the confirmation of the decision to confirm the dismissal. The applicant was notified of the dismissal and given an opportunity to seek to have the proceedings reinstated and the applicant did not do so.

6. Ground 1 discloses no error by the Tribunal. Grounds 2 and 3 do not accurately reflect the communications sent to the applicant. The applicant had an opportunity to respond to the Tribunal but did not do so. No error is made out by grounds 2 and 3. Ground 4 again disagrees with the opportunity given to the applicant by the Tribunal from the communication summarised above. There was no unfairness in the process by the Tribunal. Ground 4 raises no error by the Tribunal. No jurisdictional error is made out by grounds 1 to 4 of the application.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 August 2018