APS22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 473
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
APS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 473
File number(s): SYG 116 of 2022 Judgment of: JUDICIAL REGISTRAR CUMMINGS Date of judgment: 6 June 2023 Catchwords: MIGRATION – judicial review – application for summary dismissal of application for judicial review – where Tribunal dismissed review application after applicant failed to appear at hearing – where Tribunal confirmed dismissal decision after applicant failed to apply for reinstatement within prescribed period – whether Tribunal exercised its powers reasonably – whether applicant’s claims and evidence were treated unfairly or unreasonably by Tribunal – whether Tribunal improperly applied statutory provisions when determining applicant’s review application – summary dismissal application upheld.
PRACTICE AND PROCEDURE – adjournment – where applicant made an oral application during the hearing of a summary dismissal application for an adjournment of one month to allow her further time in which to seek legal advice – where applicant had already been given sufficient time to obtain legal representation – where adjournment application was made very late – where applicant’s submissions in support of adjournment application did not indicate that she had reasonable prospects of successfully opposing the summary dismissal application – application refused.
Legislation: Migration Act 1958 (Cth), ss 425, 425A, 425A(1), 425A(2)(a) 425A(3), 425A(4), 426A(1A)(b), 426A(1B), 426A(1E), 426A(1F), 426B(2), 426B(5)(a), 426B(5)(b), 426B(6), 441A(5), 476(2)(a), 476(4)(a)
Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021, r 13.13(a), sch 2 pt 1 div 1
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744, followed.
AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44, followed.
AYT16 v Minister for Immigration and Border Protection [2017] FCA 252, applied.
BJP16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 272, followed.
CZM17 v Minister for Immigration & Another [2018] FCCA 158, followed.
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, applied.
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, applied.
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submissions: 17 May 2023 Date of hearing: 6 June 2023 Place: Adelaide Applicant: In person by Microsoft Teams with an interpreter First Respondent: Ms P Nirmaleswaran of Mills Oakley by Microsoft Teams ORDERS
SYG 116 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: APS22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDICIAL REGISTRAR CUMMINGS
DATE OF ORDER:
6 JUNE 2023
THE COURT ORDERS THAT:
1.The application for judicial review filed on 25 January 2022 be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
2.The applicant pay the first respondent’s costs fixed in the amount of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR DECISION
JUDICIAL REGISTRAR CUMMINGS
On 25 January 2022, the applicant applied to this Court for judicial review of a decision made by the second respondent (the Tribunal) on 4 January 2022.
The first respondent (the Minister) contended that the applicant’s application should be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules) because it had no reasonable prospects of success.
At the conclusion of the hearing of the Minister’s summary dismissal application, I made orders summarily dismissing the applicant’s judicial review application with costs. These are my reasons for making those orders.
BACKGROUND
On 19 August 2021, a delegate of the Minister refused the applicant’s application for a protection visa. On 1 September 2021, the applicant applied to the Tribunal for review of the delegate’s decision. In the application form, she indicated that she did not wish to appoint a representative, and instead asked the Tribunal to send correspondence to her directly. The applicant provided a contact email address and phone number for this purpose. On 24 November 2021, the Tribunal invited the applicant to attend a hearing by Microsoft Teams on 9 December 2021. The invitation was sent to the contact email address listed in the applicant’s review application. The invitation relevantly stated the following:
What will happen if you don’t appear
If you do not appear at the scheduled hearing, including not appearing by video conference using Microsoft Teams at the scheduled time, 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.
The invitation was accompanied by a brochure which confirmed the above information as to the potential consequences of the applicant failing to appear at the Tribunal hearing.
The applicant did not join the Microsoft Teams meeting room at the time of the hearing on 9 December 2021. On the following day, the Tribunal dismissed the applicant’s review application pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the Act) (the dismissal decision). The Tribunal’s decision record for the dismissal decision relevantly stated the following:
The invitation [to the hearing before the Tribunal] stated that if the review applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent the review applicant SMS reminders about the hearing five business days and one business day before the scheduled hearing to the last mobile phone number provided by the review applicant to the Tribunal in connection with the review. The invitation also stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the review without further notice. The review applicant did not respond to the hearing invitation and has not engaged with the Tribunal about the review process since their application for review was lodged on 1 September 2021.
The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. There is no evidence before the Tribunal that the review applicant joined the hearing by clicking on the link in the hearing invitation at the scheduled time, or that they called the telephone number in the hearing invitation and used the unique conference ID the scheduled time, as instructed to do in the hearing invitation. There is also no record of the review applicant contacting the Tribunal by any other means at the scheduled time to explain why they had not used the link, or telephone number and unique conference ID, to attend the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) and that the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Tribunal notified the applicant of the dismissal decision on the day that decision was made. The cover letter accompanying the dismissal decision relevantly stated the following:
You may apply to us, in writing, for reinstatement of the application by 24 December 2021. 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.
The applicant did not apply for reinstatement of her review application by 24 December 2021. On 4 January 2022, the Tribunal exercised the power in s 426A(1E) by confirming the dismissal decision (the confirmation decision). The Tribunal’s decision record for the confirmation decision relevantly states the following:
As the 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.
PROCEEDINGS IN THIS COURT
The applicant applied for judicial review of the confirmation decision but not the dismissal decision. The grounds contained in this were are as follows (original reproduced):
1.The Department of Home Affairs was unfairly treated my claims and evidence with wendesbury unreasonableness
2.The Department was improperly aoplied the legal provisions of: s.425, s.426A(1A)(b), s441A(5) of Migration Act 1958 properly to assess my case
I construed the grounds as being directed to the Tribunal’s decisions, in circumstances where:
(1)The sections referred to in ground two were (and could only be) exercised by the Tribunal as opposed to the Department;
(2)The applicant has listed the confirmation decision as the relevant migration decision in the judicial review application form; and
(3)This Court has no jurisdiction to undertake a judicial review of the delegate’s decision (s 476(2)(a) and s 476(4)(a) of the Act).
The matter came before me for hearing of the Minister’s summary dismissal application on 6 June 2023. These were the documents I considered in determining that application:
(1)The applicant’s application for judicial review filed on 25 January 2022;
(2)The applicant’s affidavit filed on 25 January 2022 (which annexed the confirmation decision and repeated the judicial review grounds contained in the applicant’s application for judicial review);
(3)The Minister’s response filed on 7 February 2022 (noting that it was amended by an oral application for summary dismissal made by the Minister’s solicitor at a callover before Registrar Carney on 21 February 2023);
(4)The court book filed by the Minister on 28 February 2022; and
(5)The Minister’s submissions filed on 17 May 2023.
I admitted the documents referred to above at (2) and (3) into evidence at the hearing of the summary dismissal application.
During the hearing, the applicant sought an adjournment of one month to provide her with more time in which to seek legal advice. The Minister opposed the adjournment application. I declined to adjourn the hearing and indicated that I would give reasons for doing so in my decision in relation to the summary dismissal application. The bases on which I declined to adjourn the hearing were as follows:
(1)I was satisfied that the applicant had already been given sufficient time to arrange legal representation. She initiated these proceedings in January 2022 and she was informed of the date for the hearing of the summary dismissal application on 20 April 2023. She was also informed by Registrar Carney at a callover hearing in February 2023 that she should forthwith seek legal representation in the event she wished to engage such assistance for the hearing of the Minister’s summary dismissal application.
(2)The applicant’s application was made very late and without advance notice to the Minister’s lawyer or the Court. The lateness with which the application was brought meant that no other matter could be heard today in lieu of this matter. Broader case management considerations therefore weighed against the grant of the adjournment, particularly in light of the significant volume of migration matters that are awaiting a hearing in this Court (BJP16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 272 at [35] per Judge Lucev).
(3)My preliminary assessment at the time I heard the adjournment application was that the applicant had no real prospects of successfully opposing the Minister’s summary dismissal application and I was therefore concerned that adjourning the matter would be an exercise in futility. The issue the applicant indicated she wished to explore with a lawyer in the event she was granted an adjournment was whether the Tribunal was biased against her in circumstances where the Tribunal had said to her at a hearing that she was “talking nonsense”. That avenue of inquiry did not appear to me to be likely to result in the construction of a coherent allegation of jurisdictional error directed to the Tribunal in circumstances where the applicant did not attend any hearing before the Tribunal. My own review of the material before the Court indicated that it was highly unlikely that an adjournment would result in the applicant filing an amended application that contained a reasonable arguable contention of jurisdictional error directed to the Tribunal.
I approached the matter on the basis that it was for the Minister, as the moving party in respect of the summary dismissal application, to satisfy me that the applicant’s application for judicial review has no reasonable prospects of success (AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 at [37] per Deputy Chief Judge Mercuri).
Noting that the applicant was unrepresented, I gave the applicant an explanation as to the nature of the Court’s role in undertaking judicial review and the common categories of jurisdictional error. I also explained that I had no power to grant the applicant a visa or to determine whether she was a person who should be granted a visa.
In circumstances where the Minister was the moving party in respect of the summary dismissal application, I first invited his solicitor to make submissions as to why I should be satisfied that the applicant’s substantive application has no reasonable prospects of success. The Minister’s oral submissions were to similar effect as those made in his written submissions. First, the Minister summarised the background to the matter with a particular focus on the manner in which the Tribunal determined the applicant’s review application. As to ground one, the Minister’s lawyer submitted that the Court did not have jurisdiction to review the delegate’s decision. In the event ground one was to be construed by the Court as a challenge to the Tribunal’s decision, the Minister’s lawyer submitted that the Tribunal had no obligation to consider the applicant’s claims and evidence given that it had elected to exercise its power to dismiss the applicant’s review application without any further consideration of the application or information before the Tribunal in response to the applicant’s failure to appear at the hearing. As to ground two, and on the assumption that I would also construe that ground as being a challenge directed to the Tribunal, the Minister submitted that the ground lacked particularity, and that the Tribunal did not in any event misapply any of the provisions referred to therein.
I then invited the applicant to make oral submissions. The applicant said to me that there was nothing wrong with what the Tribunal did in her case. She instead complained about the conduct of a person she said she had engaged to assist her, however the applicant’s submissions as to the time period in which she said this person assisted her established that the person had assisted the applicant with these Court proceedings rather than the Tribunal review process. In circumstances where the Tribunal’s file indicated that the applicant did not appoint an agent or representative to assist her in the Tribunal process, and where the applicant told me during the hearing that she did not engage an agent for the Tribunal process, I was not satisfied that the applicant’s contentions as to the conduct of the person she referred to in her oral submissions to me was a matter that could reasonably result in her judicial review application being upheld at a final hearing, noting that success at the final hearing would require the applicant to establish that the Tribunal’s decisions, or either of them, were vitiated by jurisdictional error.
It is otherwise convenient to frame my analysis of the summary dismissal application by reference to these questions:
(1)Did the Tribunal have power to make the dismissal decision?
(2)Did the Tribunal act reasonably in making the dismissal decision?
(3)Did the Tribunal have power to make the confirmation decision?
(4)Did the Tribunal act reasonably in making the confirmation decision?
Did the Tribunal have power to make the dismissal decision?
Sections 426A(1)-(1A) of the Act provide as follows:
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
The dismissal power in s 426A(1A)(b) is conditioned upon the relevant applicant having been validly invited under s 425 to appear before the Tribunal (ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744 at [50]). For the reasons that follow, I am satisfied that the hearing invitation extended to the applicant in the matter at hand complied with the requirements imposed by ss 425 and s 425A of the Act:
(1)The invitation indicated the date, time and means by which the applicant could attend the hearing, as is required by s 425A(1).
(2)The invitation was addressed to the applicant and was conveyed to her by email to the contact email address she provided in her Tribunal review application, email being an approved communication method for the purposes of ss 425A(2)(a) and 441A(5).
(3)The invitation was given to the applicant on 24 November 2021, which constituted a notice period for the hearing that exceeded the minimum prescribed by s 425A(3) and reg 4.35D of the Migration Regulations 1994 (Cth).
(4)The invitation contained a statement explaining what would happen if the applicant did not attend the hearing, as is required by s 425A(4) of the Act.
In light of the forgoing, I was satisfied that the dismissal power in s 426A(1A)(b) was enlivened in the matter at hand by reason of the applicant’s failure to appear at the Tribunal hearing. I did not consider that the contrary position was reasonably arguable.
Did the Tribunal act reasonably in making the dismissal decision?
The dismissal power in s 426A(1A)(b) must be exercised reasonably (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4]; (2018) 264 CLR 541 at 549). I was satisfied that the exercise of the power in the matter at hand was reasonable. I was of that view because the reasons the Tribunal gave as to why it exercised the power in the way that it did comprised an intelligible justification for the exercise of the power (Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [58]); (2014) 231 FCR 437 at 446-447). The gist of those reasons was as follows:
(1)Despite being validly invited to the hearing, informed of the consequences of not attending at same, and given two SMS reminders about the hearing shortly before it was scheduled to occur, the applicant did not appear at the hearing nor did she explain to the Tribunal that she would not be appearing.
(2)The applicant did not respond to the Tribunal’s hearing invitation and had not otherwise engaged with the Tribunal about the review process since she lodged her review application.
Although the applicant complains in ground one that her “claims and evidence” were “unfairly treated”, the Tribunal was not obliged to evaluate the strength of the applicant’s protection claims in determining how to exercise the dismissal power in s 426A(1A)(b) (CZM17 v Minister for Immigration & Another [2018] FCCA 1587 at [25] per Judge Driver). I did not consider that the contrary position was reasonably arguable. The text of s 426A(1A)(b) confirms that the section empowers the Tribunal to dismiss an application “without any further consideration of the application or information before the Tribunal”.
By reason of the matters referred to above at [19]-[23], I was satisfied that, contrary to what is asserted in ground two, the Tribunal did not improperly apply any of ss 425, s 426A(1A)(b) or s 441A(5) of the Act in the process leading up to and culminating in the making of the dismissal decision. I was satisfied that the contrary position was not reasonably arguable.
Did the Tribunal have power to make the confirmation decision?
Sections 426A(1B) and 426A(1E) provide as follows:
(1B) If the Tribunal dismisses the application [pursuant to s 426A(1A)(b)], the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
…
(1E) If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
I was satisfied that the applicant was notified of the dismissal decision for the purposes of s 426B on the date the decision was emailed to her, namely, 10 December 2021. On that day, the applicant was given a written statement of decision that complied with the requirements of s 426B(2). The statement was given to the applicant within the 14 day period mandated by s 426B(5)(a). That statement was conveyed to the applicant through email, a method specified in s 441A, as required by s 426B(5)(b). The applicant was also given a statement describing the effect of ss 426A(1B) to (1F), as required by s 426B(6).
The 14-day period referred to in s 426A(1B) therefore expired on 24 December 2021. It follows from the mandatory terms of s 426A(1E) that the decision the Tribunal made on 4 January 2022, namely, the confirmation decision, was the only decision the Tribunal could validly make in light of the applicant’s failure to apply in writing for reinstatement of the review application (AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10]).
Did the Tribunal act reasonably in making the confirmation decision?
The fact that the Tribunal was “obliged by law” (AYT16 at [10]) to make the confirmation decision necessarily means that the Tribunal’s decision to proceed in that way was not legally unreasonable. The mandatory nature of s 426A(1E) also led me to conclude that neither of the applicant’s grounds comprised a reasonably arguable allegation of jurisdictional error in respect of the confirmation decision.
CONCLUSION
In light of the forgoing, I was affirmatively satisfied that the applicant did not have reasonable prospects of establishing that the confirmation decision (or, for that matter, the dismissal decision) were vitiated by jurisdictional error. I therefore decided that it was appropriate for the application to be summarily dismissed pursuant to r 13.13(a) of the Rules.
The Minister sought an order requiring the applicant to pay the Minister’s costs fixed in the amount of $4,189.38. I was satisfied that costs should follow the event. The amount sought by the Minister reflects the Court’s scale as set out in Division 1 of Part 2 of Schedule 2 of the Rules, and I therefore considered that the claimed amount was appropriate.
The applicant submitted to me that the person that assisted her with the Court proceedings should be required to meet the costs order made against the applicant today. I indicated to the applicant that any complaint about the conduct of that person should be made to the Office of the Migration Agents Registration Authority in circumstances where the applicant told me that the person was a migration agent.
32 I certify that the preceding 31 (thirty-one) numbered paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar Cummings.
Legal Case Manager:
Dated: 6 June 2023
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