ATC21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 509
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ATC21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 509
File number(s): SYG 475 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 16 June 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (class XA) Protection (subclass 866) visa – application for review of Registrar’s decision – whether Tribunal failed to consider relevant information – whether Tribunal unduly exercised its discretionary power – whether application treated unfairly. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Migration Act 1958 (Cth) s 426A
Cases cited: ABJ19 v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 7 June 2023 Date of hearing: 7 June 2023 Place: Parramatta Counsel for the Applicant: The Applicant appearing in person Solicitor for the Respondents: Ms Meaney, Mills Oakley ORDERS
SYG 475 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATC21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
16 June 2023
THE COURT ORDERS THAT:
1.The application for Review of Registrar’s Decision is dismissed.
2.In addition to the costs ordered by Registrar Carney, the Applicant is to pay the First Respondent’s costs fixed in the sum of $600.00.
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 HUMHREYS
INTRODUCTION AND BACKGROUND
The applicant is a male citizen of China. He arrived in Australia on 19 December 2017 as the holder of a Visitor’s visa.
On 25 February 2018, he applied for a Protection (class XA) Protection (subclass 866) visa (“Protection visa”) based on bare claims to fear harm in China due to “bad credit debt” and “family trouble”. He claimed he was safe in Australia and there were job opportunities.
On 24 April 2019, a delegate of the Minister for Immigration (“the delegate”) refused the applicant a Protection visa. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).
At the Tribunal, the applicant did not appoint a representative but gave the Tribunal an email address and a mobile telephone number for correspondence purposes.
By letter dated 22 January 2021, sent to his nominated email address, the applicant was invited to a hearing scheduled for 11 February 2021. That letter asked the applicant to inform the Tribunal if he was not able to attend the hearing and warned him if he did not answer his telephone at the scheduled hearing the Tribunal could dismiss the matter without consideration of the application or the material before it.
On 4 and 10 February 2021, the applicant was sent SMS messages reminding him of the hearing. The applicant failed to appear at the hearing. The Tribunal attempted to contact the applicant on his nominated telephone number but was unable to do so. No application for an adjournment was received by the Tribunal.
Later that afternoon, the Tribunal proceeded under s 426A(1A)(b) of the Migration Act 1958 (Cth) (“the Act”) and dismissed the matter.
A copy of the Tribunal’s decision was sent to the applicant via email at his nominated address. That letter informed the applicant he could apply within 14 days to have his matter reinstated failing which, the Tribunal would confirm its decision to dismiss his matter. No application for reinstatement was received. On 1 March 2021, the Tribunal confirmed its decision to dismiss the application.
The Tribunal’s decision records set out briefly, the history of the matter and its reasons for initially dismissing the matter and then confirming the dismissal due to the non-appearance of the applicant and his failure to seek reinstatement.
The applicant sought judicial review of the decision to dismiss his application. On 3 May 2023, the matter came before a Registrar of this Court. On the application of the first respondent, the Registrar dismissed the matter pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCoA Act”) and/or r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”).
The applicant now seeks a review of the Registrar’s decision. The Court notes that the application for Review was filed slightly outside the specified time frame. By consent, the time frame for the application for review to be filed was extended to the date of filing.
GROUNDS OF JUDICIAL REVIEW
The applicants grounds of judicial review are set out in his initiating application filed with the Court on 21 March 2021. They are as follows:
I believe there exist jurisdictional error is in my case.
1.Tribunal should consider all relevant information before reaching its decision. However, tribunal did not consider my claims and dismissed my application without giving reasonable grounds.
2.Tribunal unduly exercised its discretionary power.
3.There exists unfairness to my application.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter.
At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of his case. When the applicant was asked if there was anything he wished to say to the Court he stated “No”. When asked if he did not wish to say anything then why did he apply for a review of the Registrar’s decision he answered “Because I want to stay in Australia”.
At the conclusion of the respondent’s oral submissions, the applicant was asked if you wish to state anything in reply. He answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
It was submitted the established principles in relation to summary judgement can be summarised as follows: ABJ19 v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 (“ABJ19”) at [19]:
1. The moving party bears the onus of persuading the court that the application is no reasonable prospect of succeeding;
2. the assessment of whether a proceeding has no reasonable prospects of success necessitates the making of value judgements in the absence of a full and complete factual matrix and argument;
3. despite the threshold for summary dismissal having being lowered, the discretion must still be exercised with caution.
4. The determination of a summary dismissal application does not require a mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. A critical examination of the available materials to determine whether or not there was a real question of law fact to be decided is required
It was submitted the relevant principles make clear that, in considering the first respondent’s summary dismissal application, the Court is not required to determine whether the decision of the Tribunal is affected by jurisdictional error. Rather, it is concerned with whether the case raises “real a genuine dispute” as to any material fact that might be reasonably resolved in the applicant’s favour: ABJ19 at [33].
In the present case, the application has no reasonable prospects of succeeding for the following reasons:
1. The Tribunal validly invited the applicant to appear before it at a hearing;
2. the Tribunal was correct to conclude that the hearing invitation met the relevant statutory requirements and the applicant had failed to appear before the Tribunal without providing any explanation for his nonappearance;
3. the Tribunal identified cogent reasons for proceeding under s 426A(1A)(b) of the Act when the applicant failed to appear and the exercise of the discretion was not unreasonable;
4. the applicant was validly notified of the nonappearance decision but did not seek reinstatement within the prescribed period. Consequently, the Tribunal statutorily required by s 426A(1E) of the Act to make the confirmation of dismissal decision;
5. further, the application for judicial review pleads three grounds that lack merit.
In terms of the substantive grounds of judicial review, none has reasonable prospects of success. Ground 1 complains that the Tribunal “did not consider my claims” and dismissed the review application without “giving reasonable grounds“. The matter was dismissed for want of appearance. The applicant did not seek reinstatement within the prescribed time. It was submitted that to the extent that the applicant repeats his protection claims, this amounts to impermissible merits review.
In terms of Ground 2, this states that the Tribunal “unduly exercised its discretionary power”. The Tribunal properly set out its reasons for dismissing the matter for non-appearance. The Tribunal acted in accordance with the relevant legislation in properly notifying the applicant of the hearing date and time to his nominated email address. Courtesy SMS messages were sent to his mobile telephone number reminding him of the hearings time and date. He failed to respond to notification of the dismissal. In these circumstances the Tribunal had no option other to confirm the dismissal for non-appearance.
Ground 3 is a bland assertion of “unfairness” without any particulars. A lack of particulars renders the ground liable for dismissal for this reason alone. In any event, the Tribunal followed all procedural steps required of it in notifying the applicant of the time and date of the hearing. The applicant was advised of the consequences if he failed to appear. The Tribunal was under no obligation to adjourn the matter to another date given the applicant’s failure to appear.
As none of the grounds of judicial review have any merit, it was submitted the summary dismissal should be confirmed.
CONSIDERATION
A review of a Registrar’s decision to summarily dismiss a matter is a de novo hearing.
In relation to the Tribunal’s decision to dismiss the matter for non-appearance, the Court is satisfied that the Tribunal undertook all necessary procedural steps in relation to the notification of the applicant of time, date and method by which the hearing would take place. The Court is satisfied that the letter inviting the applicant to the hearing, was properly forwarded to his nominated email address. Further, two courtesy SMS messages was sent to the applicant’s mobile telephone number reminding him of the hearing before the Tribunal.
The hearing was scheduled for 11 February 2021 at 12:30 PM. When the applicant failed to appear, the Tribunal attempted to contact the applicant on his designated mobile telephone number but to “no avail”. It is not until later in the afternoon, at 4:11 PM, that the Tribunal determined to dismiss the application for want of an appearance by the applicant. No application for an adjournment was received.
The Court is satisfied that the applicant was properly notified of the initial decision to dismiss his matter and that he was advised of his right to seek reinstatement within a period of 14 days. The Court is satisfied the applicant was properly notified of this decision via a letter to his nominated email address. When the applicant did not seek reinstatement within the specified period, the Tribunal had no option other than to confirm the dismissal.
The Court is satisfied the Tribunal properly exercised its discretion to dismiss the matter for non-appearance. The Court notes in this regards the applicant had not responded to the hearing invitation letter or otherwise engaged with the Tribunal prior to the hearing
As the applicant did not appear at the hearing, the Tribunal was not required to consider the applicant’s claims. The Court is satisfied that the Tribunal’s reasons properly set out the basis of its decision. There was no requirement for the Tribunal to consider the grounds of the application to the Tribunal, such as they were.
The Court is satisfied that there was no procedural irregularity or any other error such as to give rise to jurisdictional error in the matter in which the Tribunal went about its task and the reasons that it gave for coming to the conclusion that it did.
In terms of the purported grounds of judicial review, even at an impressionistic level, the Court is not satisfied they have any merit whatsoever. Ground one complains the Tribunal did not consider the applicants claims. For the reasons set out above, the Tribunal was not required to.
Ground two complains that the Tribunal unduly exercise its discretionary power. The Court is satisfied in the circumstances, given the nonappearance of the applicant, the Tribunal acted reasonably in initially determining to dismiss the application. All subsequent procedural requirements were followed, in that the applicant was notified that the matter had been at dismissed and was invited to seek reinstatement. He did not do so. There is nothing unreasonable, illogical or irrational in the Tribunal then confirming the dismissal of the application.
Ground three is a bland assertion of unfairness. Without particulars, this ground is impossible to respond to. For the reasons set out above, there was nothing unfair in what the Tribunal did or in the manner in which it went about doing what it did. The applicant failed to appear. The Tribunal dismissed the matter for want of appearance. The applicant was advised of his right to seek reinstatement failed to do so. It was inevitable in these circumstances that the confirmation of the dismissal would occur.
None of the grounds are purported judicial review have any merit. In these circumstances the Court is satisfied it is proper that the matter be dismissed pursuant to s 143 of the FCFCOA Act and r 13.13 of the Rules.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Deputy Associate:
Dated: 16 June 2023
1
1
0