ALQ18 v Minister for Home Affairs
[2018] FCA 1745
•7 November 2018
FEDERAL COURT OF AUSTRALIA
ALQ18 v Minister for Home Affairs [2018] FCA 1745
Appeal from: ALQ18 v Minister for Home Affairs [2018] FCCA 2020 File number: NSD 1393 of 2018 Judge: RARES J Date of judgment: 7 November 2018 Legislation: Migration Act 1958 (Cth) ss 426A, 441A Cases cited: ALQ18 v Minister for Home Affairs [2018] FCCA 2020 Date of hearing: 7 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 16 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: HWL Ebsworth Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1393 of 2018 BETWEEN: ALQ18
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
7 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RARES J:
On 27 September 2018, this appeal was listed for hearing when the national operations team informed the parties by email that I would be hearing it on 7 November 2018 at 9.30am. The Court’s email used the appellant’s email address set out in his notice of appeal that he filed on 7 August 2018. On 31 October 2018, the Minister’s solicitors sent his written submissions and list of authorities to the appellant by pre-paid registered post and by email using the same email address.
The appellant has not appeared today. The matter was called outside the Court. He did not answer his mobile phone when the Court officer attempted to phone the number used in the notice of appeal.
Given the nature of the circumstances in which this appeal arises, the appellant’s failure to attend appears to be part of a pattern of behaviour reflecting other occasions on which he has not appeared. Indeed, the subject matter of this appeal relates to his failure twice to avail himself of the opportunity to appear before, give evidence and present arguments to, the Administrative Appeals Tribunal. That led the Tribunal to dismiss his application to review the decision of the Minister’s delegate made on 31 August 2015 to refuse to grant the appellant a protection visa.
Background
By email dated 23 October 2017, sent to the appellant’s registered migration agent and by letter dated 23 October 2017 sent to him at his address, being a Post Office box, which he had given for service, the Tribunal had invited the appellant to appear at a hearing at 1pm on 24 November 2017. The migration agent responded to the invitation on behalf of the appellant on 8 November 2017 asking for confirmation from the Tribunal that he had an application for review before it so as to enable him to maintain his entitlement to seek Medicare benefits. The Tribunal responded with such a confirmation the same day.
However, on 24 November 2017, the appellant failed to appear at the time set for the hearing before the Tribunal. On 1 December 2017 the Tribunal made a decision to dismiss the application on that basis, and on 4 December 2017 it sent him, and his migration agent, a letter notifying them that it had dismissed the application on 1 December 2017 pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth). The letter attached the Tribunal’s written reasons for that decision, being the appellant’s failure to appear before the Tribunal on 24 November 2017. The Tribunal found that it was satisfied that he had been properly invited to the hearing in accordance with s 441A(5).
The letter that the Tribunal sent to the appellant, dated 4 December 2017, contained an error in that it told him that he could apply for reinstatement of the application for review by 15 December 2017, when s 426A(1B) required that he be given notice that he could make the application for reinstatement within 14 days after the date on which the Tribunal notified him that it made the decision. After appreciating this problem, the Tribunal wrote again to the appellant and his migration agent on 14 December 2017 giving him a further opportunity to apply for reinstatement by 28 December 2017. Once again, the appellant made no application for reinstatement.
On 8 January 2018, the Tribunal confirmed the 1 December 2017 decision to dismiss the application because the appellant had not so applied. It gave reasons that it sent to the appellant on 9 January 2018.
The proceeding in the Federal Circuit Court
The appellant filed an application in the Federal Circuit Court on 1 February 2018 to obtain judicial review of the Tribunal’s decision, attaching a statement that complained that he was unable to attend the hearing because he had been in very poor health and felt bad on the day of the hearing. The statement asserted that he did not have time to inform the Tribunal of this problem and that, instead, it should have somehow understood what his current situation was. It asserted that the Tribunal should have checked with him and that he should have been given the opportunity to comment.
The proceedings came before the trial judge on 25 July 2018 when the appellant appeared. His Honour recorded that he was a citizen of the People’s Republic of China who had arrived in Australia on 2 July 2014 and held a visitor visa. He had applied on 30 December 2014 for a protection visa. He claimed that he had discovered Christianity in Sydney and wanted to remain in Australia so he could continue his practice of his religion and that he could not do so freely in China. He claimed that he would suffer adverse consequences were he to be returned to China and would be mistreated.
His Honour recorded that on 24 August 2015 the delegate had interviewed the appellant and he had made further claims. The delegate refused to grant the protection visa in his decision of 31 August 2015, leading to the appellant’s application to the Tribunal for review. As his Honour found, the grounds set out in the appellant’s application below did not identify any jurisdictional error or any other unreasonable exercise of the Tribunal’s powers. He found that, on the evidence, the Tribunal had complied with its statutory obligations when it confirmed the dismissal of the application for review. His Honour rejected the appellant’s assertions in his grounds that the Tribunal had some duty to telephone or follow up with him in respect of his non-appearances.
The trial judge noted that while the appellant had suggested that he was unable to attend the hearing due to his poor health, he had given no evidence in support of that explanation. His Honour found that the appellant, himself, had not contacted the Tribunal before or after the hearings to explain his absences. His Honour rejected the grounds of review which, in my opinion, were specious.
This appeal
On 7 August 2018, the appellant filed a notice of appeal in which he asserted that, first, the Tribunal had not been professional because it had not allowed him to provide further evidence and, secondly, it had “denied” all the evidence that he had provided without any consideration. The third ground asserted that “The staff’s attitude was not patient which caused me so nervous and state not to the point” [sic].
The grounds of appeal are an abuse of the process of the Court. They make no attempt to raise any error by the trial judge nor any conceivable jurisdictional error in the Tribunal’s two decisions. The appellant’s non-appearance today is unexplained and appears to be a repetition of his use of the Tribunal process to remain in Australia without seeking bona fide to pursue any relief.
The Minister sought leave to file a notice of contention asserting that the trial judge had referred only to the Tribunal’s letter of 4 December 2017 and not to the operative letter of 14 December 2017 giving the appellant until 28 December 2017 to apply for reinstatement.
Under s 426A(1E) the Tribunal must confirm the decision to dismiss the application by written statement under s 430. The trial judge made his decision on the basis of the Tribunal’s confirmation decision on 8 January 2018 that referred to its finding that no reinstatement application had been received within the appropriate timeframe. I am not satisfied that his Honour’s oral reasons disclosed any relevant error.
Conclusion
In my opinion, the appeal is an abuse of the process of the Court, as was the application to review the Tribunal’s decision below. The appeal must be dismissed with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 13 November 2018
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