ASY23 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1060

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ASY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1060

File number:

SYG 475 of 2023

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

18 October 2024

Catchwords:

MIGRATION – Administrative Appeals Tribunal - Protection (class XA) (subclass 866) visa – Tribunal’s exercise of the dismissal power -Whether the Tribunal’s decision was legally unreasonable – Whether the Tribunal’s decision was made in accordance with law – Whether the Tribunal misunderstood the contact number provided by the applicant – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 36(2), 426A(1A)(b), 426B(5), 441A(5).

Cases cited:

AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130.

Chan v Minister for Immigration and Border Protection [2018] FCA 1323.

Chang v Neill [2019] VSCA 151; (2019) 62 VR 174.

CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352.

CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352.

ELN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 931.

Gill v Minister for Immigration and Border Protection [2017] FCAFC 51.

Minister for Home Affairs v DUA16 (2020) 271 CLR 550.

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437.

Minister for Immigration v Stretton [2016] FCAFC 11.

Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145.

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541.

Kaur v Minister for Immigration and Border Protection [2016] FCA 132.

Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500.

SZSMR v Minister for Immigration and Border Protection [2015] FCA 655.

Taveli v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 140; (1989) ALR 435.

Division:

Division 2 General Federal Law

Number of paragraphs:

37

Date of hearing:

3 October 2024

Place:

Parramatta

Counsel for the First Applicant:

Mr Godwin

Solicitor for the First Applicant:

Ms Magee (Wotton + Kearney)

Solicitor for the Second Applicant:

No appearance by or on behalf of

Counsel for the First Respondent:

Ms Hooper

Solicitor for the First Respondent:

Ms Ren (HWL Ebsworth)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 475 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ASY23

First Applicant

ASZ23

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULRURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	18 OCTOBER 2024

THE COURT ORDERS THAT:

1.The Amended Application filed on 18 September 2024 is dismissed.

2.The First Applicant is to pay the First Respondent’s costs fixed in the sum of $6500.00.

THE COURT NOTES THAT:

A.The proceedings as to the second applicant were dismissed by the Court pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) on 11 October 2024.

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 JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“AAT”) on 14 February 2023 which confirmed their previous decision dated 28 January 2023. The relevant decision dismissed an application for review of a protection visa refusal due to the non-appearance of the applicants before the Tribunal.

   BACKGROUND

2. The first applicant is a male citizen of Malaysia. The second applicant is a female citizen of Vietnam. They were married on 20 December 2016 (“the applicants”). The first applicant arrived in Australia on 5 May 2018 on an Electronic Travel Authority (subclass 601) visa. The second applicant was refused a Visitor (subclass 600) visa on 20 April 2018. Four days later, the second applicant applied for the same visa again which was granted on 30 April 2018. The second applicant arrived in Australia on 5 May 2018.

3. Both applicants applied for a Protection (class XA) (subclass 866) visa (“Protection visa”) on 03 July 2018. The Malaysian national was the primary applicant. The Vietnamese national was the secondary applicant as a member of the family unit of the primary applicant.

4. In a decision dated 31 October 2018, a delegate of the Minister for Immigration and Multicultural Affairs refused the application for a Protection visa on the basis of the applicant’s failure to satisfy subsection 36(2) of the Migration Act 1958 (Cth) (“the Act”).

5. On 23 November 2018, the applicants applied to the AAT for review of the decision of the delegate. On 26 November 2018, an email was sent by the Tribunal acknowledging receipt of the application and instructing the applicants to provide material or written arguments they wish to submit for consideration as soon as possible.

6. On 30 November 2022, the Tribunal emailed the first applicant to clarify the appropriate email address to correspond with. The catalyst for this enquiry was a request for a Medicare letter that had been sent from an email address that did not match what the first applicant had nominated as their contact address in their application to the Tribunal.

7. The first applicant responded to the Tribunal’s email on the same day and attached a form to notify the Tribunal of a change in their contact details. Included in this form was the first applicant’s preferred email address. Having signed the form and selected the option for communication by email, the first applicant consented to all case correspondence to be sent by the Tribunal via email.

8. On 5 January 2023, an email was sent to the first applicant, with an invitation to attend the scheduled hearing and give evidence [CB 120-131]. Details of the time, date and location of the hearing were provided. Attached to the email was an Information About Hearings form which detailed the potential outcome and consequences of not attending the scheduled hearing.

9. The Migration Hearing Record indicates the applicants did not attend the hearing [CB 131].

10. In the decision of 28 January 2023, the AAT dismissed the application without further consideration of the application or information under s 426A(1A)(b) of the Act. The Tribunal was satisfied the applicants were properly invited to a hearing for review of the protection visa in accordance with s 441A(5) of the Act.

11. In that decision, the Tribunal outlined attempts to contact the applicants, which included two separate SMS reminders about the hearing made prior to the hearing date, and calls made on the date of the hearing to both the contact numbers provided by the applicants. The First Respondent submits that the SMS messages appear to have been sent to the wrong number which did not match the updated number.

12. The Tribunal stated in their non-appearance decision record that when calling one of the provided numbers, a person answered but stated that they were not the primary applicant, and they were not associated with the review.

13. On 30 January 2023, an email was sent to the first applicant. Attached was a notification of the Tribunal’s decision and reasons for the decision in writing pursuant to s 426B(5) to dismiss the application under s 426A(1A)(b) of the Act. The applicants were invited to request a reinstatement of the application, should they respond in writing by 13 February 2023.

14. The applicants did not apply for a reinstatement of their application for review before the Tribunal.

15. In a decision dated 14 February 2023, the Tribunal confirmed the decision to dismiss the application, noting that the applicants had not applied for a reinstatement of the application within the requisite 14-day period.

    GROUNDS OF JUDICIAL REVIEW

16. The applicant’s two grounds of review are contained in an Amended Application filed with the Court on 18 September 2024 are as follows:

    1.The antecedent decision on 30 January 2024 under s 426A(1A)(b) of the Act is vitiated by jurisdictional error as:

    A. The decision on 30 January 2024 to dismiss the proceedings was legally unreasonable as the discretion to dismiss the proceedings was exercised on the mistaken belief that the Tribunal had telephoned the number provided by the applicants when in fact that was not their number. Further the person who answered the call placed by the Tribunal told the Tribunal that they did not know the applicants. In these circumstances the Tribunal exercised its discretion under the unwarranted assumption that:

    a. The applicants had provided a contact number to the Tribunal that was not theirs, and

    b. The Tribunal had attempted to contact the applicants on the contact number they had provided to find out why they were not at the hearing.

    B. The Tribunal had constructively failed to exercise its jurisdiction as the discretion to dismiss the proceedings was exercised on the mistaken belief that the Tribunal had telephoned the number provided by the applicants when in fact that was not their number. Further the person who answered the call placed by the Tribunal told the Tribunal that they did not know the applicants. In these circumstances the Tribunal exercised its discretion under the unwarranted assumption that

    a. The applicants had provided a contact number to the Tribunal that was not theirs, and

    b. The Tribunal had attempted to contact the applicants on the contact number they had provided to find out why they were not at the hearing.

    THE APPLICANT’S SUBMISSIONS  

17. The first applicant submits that the dismissal power under s 426A(1A)(b) constitutes an exercise of power, which is only valid where such power is exercised in a legally reasonable manner, citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) at [4]; (2018) 264 CLR 541 at [549]. The first applicant further states that an exercise of power may be characterised as legally unreasonable if the decision-maker’s reasons do not contain an evident and intelligible justification as to the manner in which the power was exercised, citing Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [44] and [47]; (2014) 231 FCR 437 at 445-447.

18. The first applicant submits that the Tribunal misunderstood the information provided for their contact number, confusing a 9 digit for an 8. As a result, the Tribunal contacted a “random person” on the day of hearing. This step was taken before exercising the dismissal power.

19. The first applicant submits that if the dispute on what contact number was provided is resolved in favour of the first applicant, it is arguable to adopt the reasoning of Wilcox J in Taveli v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 140; (1989) ALR 435 (“Taveli”). It would follow that the Tribunal’s reasons in support of the dismissal decision “demonstrate an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker's own criteria” (Taveli [1989] FCA 140 at [52]; (1989) ALR 435 at [453]).

20. The following authorities, finding legal unreasonableness where evidence has been misunderstood or a factual error was made, were provided; Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [34]; Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 at [19] and [91]-[93]; Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [71]-[72]; SZSMR v Minister for Immigration and Border Protection [2015] FCA 655 at [56]; and ELN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 931 at [42]-[49].

21. The first applicant contends that the validity of the confirmation decision turns on the validity of the dismissal decision. If the dismissal decision was not validly made, the confirmation decision would therefore also be invalid; (see: CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352 (“CRE21”) at [90]-[91] per Judge Kendall).

22. It was contended that the error could also be characterised as a constructive failure of jurisdiction, citing Chang v Neill [2019] VSCA 151; (2019) 62 VR 174 at [92]. It is suggested that the Tribunal exercised its jurisdiction to dismiss the application under s 426A(1A)(b) of the Act on the mistaken basis that the applicants had provided a contact number which was not their own.  The Tribunal’s attempts to call the first applicant, to ensure that they knew the hearing was ready to proceed, were thereby frustrated.

23. The first applicant submitted that the error was serious, given the context was a decision to summarily dismiss the application without otherwise having regard to its merits, relying on the observations of Kendall J in CRE21 at [101].

    THE FIRST RESPONDENT’S SUBMISSIONS

24. It was submitted that the Tribunal’s decision is not vitiated by legal unreasonableness or constructive failure to exercise jurisdiction. The respondent contends that whether a particular digit in a mobile number is in fact an “8” or a “9” or what the applicant’s mobile number was, are not questions of jurisdictional fact.

25. The Court cannot receive evidence that was not before the Tribunal. Whether the decision is affected by jurisdictional error because of legal unreasonableness is to be assessed by reference to what was before the Tribunal: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130 at [37] (an appeal was allowed but not on this particular point); Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) (“DUA16”). Material relating to factual circumstances not before the Tribunal is not and cannot be relevant to the allegation of legal unreasonableness: Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 at [60]. The first respondent submits that the applicant’s Affidavit dated 16 September 2024 is inadmissible on these grounds. They contend that the whole Affidavit should be rejected on the basis of irrelevance and maintain a separate objection to paragraph [2] on the basis that it is a submission and conclusion.

26. The first respondent submits that that applicants have not discharged their onus of proving that the Tribunal’s reading of “8” not “9”, with reference to the material before them, was not reasonably open to it. It is accepted that reasonable minds can differ on how to read the numbers and that there is room for legitimate doubt. The threshold for demonstrating legal unreasonableness is high; (DUA16 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) and SZVFW at [11] (Kiefel CJ).

27. The Tribunal’s reading was reasonably open to it and such reasons reveal an evident and intelligible justification for the exercise of power to dismiss the application for non-appearance.

    CONSIDERATION

28. The Court notes that the second applicant did not appear at the hearing before the Court. She was not represented by the legal representatives of the first applicant. The Court adjourned her matter in order for inquiries to be made as to whether she wished to be heard in relation to the application for judicial review.

29. Given the centrality of what the correct mobile phone number was for the first applicant, the Court determined to admit an affidavit from him clarifying that his mobile telephone number ended in a ‘9’ rather than an ‘8’ This was simply clarifying material that was before the Tribunal.

30. Reproduced below but redacted in terms of the initial numbers are copies of the contact telephone number given in various documents that formed part of the Tribunal record. The Court is of the view that whilst 3 of the last numbers could be read as a ‘9’, the last iteration is far more an ‘8’ than a ‘9’. The first three could also be read as an imperfect ‘8’ rather than a clear ‘9’.

31. It is not disputed between the parties that the applicant was provided with a valid invitation to attend the hearing that was sent to the applicant’s nominated email address. It is also not in dispute that the initial decision to dismiss the application was sent to the applicant’s nominated email address. Given the applicants did not seek reinstatement, the Tribunal had no option other than to confirm the initial decision to dismiss the application for non-appearance.

32. The applicant’s contention in ground one is that the initial decision to dismiss the proceedings due to the applicant’s non-appearance was legally unreasonable. The Court does not accept this proposition. While the Court is prepared to accept that both the SMS reminders, and the phone calls made during the course of the hearing, were made to an incorrect telephone number, these attempts to contact the applicants were no more than a courtesy. The applicants do not dispute they received a valid invitation to attend the hearing.

33. Further, in my view it was not legally unreasonable, bearing in mind the stringent bar for legal unreasonableness, for the Tribunal to misinterpret the last figure as an ‘8’ rather than a ‘9’ if the Tribunal looked at the last iteration of the contact telephone number as set out above. That being the case, the decision to initially dismiss the application did not miscarry. The applicants had received a valid invitation to attend the hearing and had not appeared.  That was of itself sufficient to enliven the discretion to dismiss the application rather than adjourning the hearing. Ground one has no merit.

34. Ground two is a claim of a constructive failure to exercise jurisdiction based on the fact that the Tribunal made an unwarranted assumption regarding the relevant telephone number of the applicants. As set out above, the Court considers that it was not unreasonable to misinterpret the final number in the last contact number given as an ‘8’ rather than a ‘9’.

35. There is nothing in the Tribunal's reasons in exercising its discretion not to adjourn the matter, but rather dismiss the application, to suggest that its decision was made other than in accordance with law. The Tribunal's decision was based on rational reasons that it identified and were open to it for the reasons it gave. The reasons for exercising its discretion as it did were not arbitrary, capricious or unreasonable, in circumstances where it is not disputed that a valid invitation to attend the hearing had been provided to the applicants; (see: Minister for Immigration v Li (2013) 249 CLR 332 at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [17] per Perry J; Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [38] per Griffiths, Kerr and Farrell JJ).

36. Further, no adequate explanation has been given by the applicants for their failure to either attend the hearing, or make a request for reinstatement, once the initial decision to dismiss the application was, as is conceded, validly and properly communicated to them. Ground two has no merit.

    DETERMINATION

37. As none of the grounds of judicial review have merit, the application must be dismissed.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       18 October 2024