Ati21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 3
•11 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ATI21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 3
File number(s): SYG 466 of 2021 Judgment of: JUDGE LAING Date of judgment: 11 January 2024 Catchwords: MIGRATION - application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal’s decision was relevantly affected by legal unreasonableness – application dismissed Legislation: Migration Act 1958 (Cth) ss 424A, 425, 425A, 426, 426A, 426B, 441A, 441C & 477
Migration Regulations 1994 (Cth) r 4.35D
Cases cited: AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383; (2015) 244 FCR 144
FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1025; (2020) 279 FCR 212
Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 141 ALD 619
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Radzi v Minister for Immigration and Border Protection [2014] FCA 626; (2014) 143 ALD 124
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 6 December 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms J Strugnell of MinterEllison Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 466 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATI21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
11 JANUARY 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for judicial review of the Tribunal’s decision be dismissed.
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 LAING:
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed its decision to dismiss an application made to it for review of a decision of a delegate (Delegate) of the first respondent (Minister). By that decision, the Delegate had refused to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia in September 2015.
On 21 January 2016, the applicant applied for a protection visa.
On 4 March 2016, the Delegate refused the application. The applicant applied to the Tribunal for review of the Delegate’s decision on 15 March 2016.
The applicant subsequently lodged with the Tribunal a Change of Contact Details form dated 2 August 2016. This included a residential address and mobile number. The mobile number was the same number that had been provided in the application to the Tribunal. No email address was nominated for contact. Nor had any email address been nominated in the application form to the Tribunal.
The applicant attended a hearing before the Tribunal on 26 April 2017. On 7 June 2017, the Tribunal affirmed the Delegate’s decision. This decision of the Tribunal was subsequently quashed and the matter was remitted to the Tribunal for reconsideration.
On 25 October 2017, a case note records that the applicant requested a Medicare letter from the Tribunal and asked to be advised by phone when his acknowledgment letter was ready for him to collect in person. The applicant was then called that day to be told that his Medicare letter was ready for collection, together with a letter from the Tribunal acknowledging remittal of the matter to the Tribunal. The acknowledgment letter, which was provided by hand, included a Change of Contact Details form which the applicant was advised to use if he wished to change his contact details.
On 14 November 2017, the applicant provided a completed Change of Contact Details form to the Tribunal. As in the previous form, the mobile number remained unchanged although the residential address was updated. No email address was nominated for contact in relation to the review.
On 16 April 2019, a case note records that a Medicare letter was printed at the applicant’s request “at counter”.
On 23 April 2020, a case note records that the applicant called asking for a further Medicare letter and was advised to make this request in writing via email. On 27 April 2020, after a further call, the applicant agreed to send a written request for the letter.
On 5 July 2020, the applicant emailed the Tribunal requesting a Medicare letter.
On 7 September 2020, a case note records that the Tribunal attempted to contact the applicant by phone regarding a proposed listing of the matter for hearing via Microsoft Teams. The phone number used in the attempt to contact the applicant was recorded as having been disconnected.
On 8 September 2020, the Tribunal sent a letter to the applicant’s updated residential address requesting a response regarding the Tribunal’s proposal to list the matter for hearing via Microsoft Teams. No response appears to have been received within the time requested.
On 6 October 2020, the Tribunal sent a further letter to the applicant’s nominated residential address inviting the applicant to attend a hearing on 6 November 2020.
On 30 October 2020, a case note records that an SMS reminder of the hearing was sent to the applicant’s nominated mobile number. Delivery was recorded as having failed.
On 4 November 2020, the Tribunal sent a letter by express post to the applicant notifying that it had postponed the scheduled hearing after learning that the applicant’s telephone number had been disconnected. A Change of Contact Details form was enclosed. The applicant was asked to complete this and return it to the Tribunal.
On 9 November 2020, the Tribunal sent the applicant, by express post to his nominated address, notification of its intention to schedule an in-person hearing on 11 December 2020. It was noted that the applicant’s phone number had been disconnected. A number was sought, together with other information.
On 30 November 2020, the Tribunal sent the applicant, by express post to his nominated address, an invitation to attend an in-person hearing on 13 January 2021. The applicant did not attend the hearing.
On 6 January 2021, an SMS reminder was sent to the applicant’s nominated mobile number which the Tribunal had previously learned had been disconnected. Delivery of the message was unsuccessful.
On 12 January 2021, a further SMS reminder was attempted. Delivery was unsuccessful.
On 13 January 2021, the Tribunal dismissed the application and, by letter dated 14 January 2021, sent the applicant notification of this and of the opportunity to seek reinstatement. This was sent by letter to his nominated residential address. The applicant did not respond or seek reinstatement within the period required.
On 9 February 2021, the Tribunal affirmed its decision to dismiss the application.
On 10 February 2021, a case note was recorded stating: “Decision sent to the applicant via post on 10/02/2021 – no email provided”.
On 10 March 2021, a call from the applicant seeking an update on the status of his case was recorded. The applicant was advised to put his request for a copy of the decision in writing. Further communications in this regard and updated contact details appear to have been provided on 11 March 2021.
THE TRIBUNAL’S DECISION
The Tribunal gave the following reasons for its decision of 13 January 2021 to dismiss the application:
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 13 January 2021 at 10am. The invitation stated that if he 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.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing by prepaid post in accordance with s.441A(4) and that the invitation has not been returned to sender. The mobile telephone number the review applicant had provided in connection with the review appears to have been disconnected and the SMS reminders about the hearing which were sent to his mobile number 5 business days and one business day before the scheduled hearing failed. The applicant did not respond to the hearing invitation nor previous correspondence regarding the possibility of conducting the hearing via video using MS Teams. Nor has he contacted the Tribunal to explain his non-appearance.
3.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 gave the following reasons for its decision of 9 February 2021 confirming the dismissal:
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 March 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 13 January 2020 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.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.
APPLICATION FOR REVIEW
The applicant commenced the current proceedings through an application filed on 18 March 2021, relying upon the following grounds of review:
1.The Tribunal erred in law by not providing the invitation to attend, as required under Sec 424A of the Act thereby depriving the applicant of the opportunity to appear before the Tribunal and give evidence . This also violated the principles of natural justice
Particulars
The applicant never received any communication from the Tribunal to his then address in [redacted], nor he received any email or SMS to his mobile, regarding the invitation to attend the hearing before the Tribunal on 13/1/21 . The applicant did not receive the decision of the Tribunal by post to the [redacted] address which he had provided to the Tribunal . The applicant as a matter of prudence used to periodically check his visa status in VEVO . On or about 10th of March 2021 when the applicant checked his visa status, he found that his visa is about to expire on [redacted] Immediately the applicant repeatedly called the Tribunal and requested it to send an a soft copy of his judgement by email, which he finally received on or about 12/3/21 at about 4.00pm.
The present Tribunal hearing was pursuant to the matter being remitted to the Tribunal by the Federal circuit court on an earlier judicial review application . On the earlier occasion the Tribunal provided the hearing details both by post and by way of SMS , which was received by the applicant. On this occasion there was no communication received by the applicant regarding the hearing or about the decision until the applicant on his own accord contacted the Tribunal and requested for a soft copy to be send by email.
2.The Tribunal erred in law by failing to consider all the applicant's evidence in relation to his application and this resulted in jurisdictional error.
Particulars
The Tribunal never considered the evidence which was already on record . The failure to consider the all the evidence adduced by the applicant on the earlier occasion, and which are on record, amounts to jurisdictional error.
The applicant sought an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act). Delay in this matter was minimal and explained by reference to, inter alia, health issues that had been experienced by the applicant. No specific prejudice was contended by the Minister. In circumstances where, as is considered below, the applicant appeared to raise an arguable ground of legal unreasonableness, I was minded to grant the extension of time. This course was ultimately unopposed by the Minister and the extension of time was granted on 8 November 2023.
The stated grounds
Ground 1 contended that the Tribunal breached s 424A of the Act. However, as the obligation to invite the applicant to attend a hearing was located in s 425 of the Act, I have understood this to be the section to which the applicant’s complaint was directed. Ground 2 contended that the Tribunal erred by failing to consider the evidence on record.
The Tribunal in this case dismissed the applicant’s case for non-appearance and subsequently confirmed that dismissal when no reinstatement application was made. If the Tribunal’s approach in this regard was not attended by relevant error, then the Tribunal was not generally bound to consider or determine the merits of the applicant’s protection visa application: FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1025; (2020) 279 FCR 212 at [36] per Nicholas J.
The question, then, is whether the Tribunal relevantly erred in making its decisions under ss 426A(1A) and/or 426(IE) of the Act. In this regard, two matters arise for consideration in this case:
(a)firstly, did the Tribunal’s issuance of a hearing invitation and other notifications occur in accordance with the Act; and
(b)secondly, was the Tribunal’s approach relevantly affected by legal unreasonableness?
The hearing invitation and associated notifications
Section 426A(1A) provided that, in the event of non-appearance by an applicant at a hearing to which they were invited under s 425 of the Act:
(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 applicant was invited to a hearing before the Tribunal pursuant to s 425 of the Act. I accept the Minister’s submission that this invitation complied with s 425A of the Act in that it:
(a)informed the applicant of the date, time and place of the scheduled hearing: s 425A(1) of the Act;
(b)was dispatched within 3 business days by prepaid post to the last residential address provided to the Tribunal by the applicant in connection with the review: ss 425A(2) and 441A(4) of the Act;
(c)gave a period of notice that was more than the prescribed period of 14 days: s 425A(3) of the Act and r 4.35D of the Migration Regulations 1994 (Cth) (Regulations); and
(d)contained a statement as to the effect of s 426A of the Act, referring to the consequences of non-appearance at the hearing: s 425A(4) of the Act.
The applicant contended that he did not receive the hearing invitation. He submitted that he had experienced ongoing health and associated issues and had moved house. The applicant submitted that if he had received the invitation, then he would have attended the hearing. He submitted that he was unaware of the hearing and that he was unable to read English.
Unfortunately for the applicant, even if he did not actually see or read the invitation to the hearing, he was deemed to have received it in accordance with s 441C(4) of the Act. The applicant was notified of the decision to dismiss his application by prepaid post to the last residential address he had provided to the Tribunal in connection with the review. The notification complied with the requirements of ss 426B(5) and (6) of the Act. It was notified by one of the methods specified in s 441A of the Act on the day of the dismissal decision. It attached the dismissal decision, invited the applicant to apply for reinstatement within 14 days and described the effect of ss 426A(1B) to (1F) of the Act.
In these circumstances, s 426A(1E) of the Act provided:
(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.
Legal unreasonableness
At the hearing before the Court, the applicant was permitted to give oral evidence that he had moved house and been unwell, which was why he had not received the hearing invitation that was sent by the Tribunal. The applicant observed that this had occurred during the COVID-19 pandemic. He contended that the Tribunal should have tried to email him. He gave evidence that because his last communication to the Tribunal had been by email (regarding the Medicare letter), he had thought that the Tribunal would therefore have his email address and use it to contact him.
It has been held that the Tribunal is not generally required to use more than one of the methods available to it in order to send a communication to an applicant: Radzi v Minister for Immigration and Border Protection [2014] FCA 626; (2014) 143 ALD 124 at [35] per Rangiah J.
However, there are cases where it has been held to have been unreasonable for the Tribunal to have made no further attempt to contact an applicant where there has been sustained previous engagement with the Tribunal by the applicant, or provision of a “substantial and serious written submission” to the Tribunal such that their non-appearance at a hearing was unexpected or remarkable: see for example Kaur v Minister for Immigrationand Border Protection [2014] FCA 915; (2014) 141 ALD 619 at [138]-[141] Mortimer J (as her Honour then was); and AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383; (2015) 244 FCR 144 at [18]-[30] per North ACJ.
In the present case, the applicant had demonstrated a fairly substantial level of engagement with the Tribunal. He had twice provided a Change of Contact Details form formally updating his contact details with the Tribunal. He had attended a hearing before the Tribunal on 26 April 2017, at which he provided further material in support of his application. He had successfully applied to the Federal Circuit Court (as it was) to quash an unfavourable decision of the Tribunal. He had also periodically sought Medicare letters from the Tribunal. If the applicant had not attended a contemporaneous hearing before the Tribunal, and the Tribunal made no attempt to call him, then legal unreasonableness would likely have been found.
However, the applicant’s engagement with the Tribunal in relation to the review (as opposed to his Medicare situation) appears to have been somewhat limited after remittal in 2017. He had provided one Change of Contact Details form after this, in November 2017. He had sought Medicare letters from the Registry in late 2017, April 2019 and April 2020. His preference for this appears to have been by mobile, and then collecting the letters in person. However, at the Registry’s request in April 2020 he had put his request to the Tribunal via email in July 2020.
The applicant had never advised the Tribunal that he regarded email as an acceptable, let alone preferable, method of communication to him by the Tribunal. On each occasion when he had updated his contact details with the Tribunal, each time formally through submission of a Change of Contact Details form, the applicant had not provided an email address but had provided a residential address and mobile number. It is unclear to what extent the email address that had been used by the applicant in relation to the Medicare letter had been verified by the Tribunal.
By the time that the Tribunal sought to contact the applicant regarding a proposed hearing in September 2020, some years had passed since the applicant’s application to the Tribunal. The applicant was not responding to the contact number he had provided to the Tribunal, which appeared to have been disconnected. He had not responded to the letter sent to his nominated residential address requesting his views regarding a hearing by video conference. The applicant, therefore, did not appear to be responding to the two methods of contact that he had nominated as being acceptable in his Change of Contact Details form.
The Tribunal did not simply then list the matter for hearing and dismiss it when the applicant did not attend. The Tribunal made multiple further attempts to contact the applicant by telephone. It sent the applicant a hearing invitation in October 2020, which it then adjourned due to difficulties in contacting the applicant. The Tribunal sent the applicant a further letter, foreshadowing listing the matter for hearing to his nominated residential address and asked that updated contact details be provided. The Tribunal further invited the applicant by an express posted letter in November 2020 to a hearing listed some months in the future. Attempts were made at providing SMS reminders.
In the above circumstances, I am not persuaded that it was legally unreasonable for the Tribunal not to have also utilised an email address from which it had received an email seeking a Medicare letter to have invited the applicant to a hearing or to have notified the applicant of the dismissal decision. The email address was not provided, at least explicitly, by the applicant as an intended means of contact in relation to the review. The applicant had previously demonstrated an understanding regarding the usage of the relevant form for advising the Tribunal of a change of contact details in relation to the review. He had consistently not included an email address on such forms, and only appeared to have utilised an email address once when he had been asked to make his request for a Medicare form “in writing [via] email”. The applicant had not responded to two other forms of contact that he had provided to the Tribunal. There was otherwise no evidence to suggest that the correspondence by post had not reached the applicant (such as a return to sender notification).
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, Kiefel CJ stated (footnotes omitted):
4.The statutory power given by s 426A is in the nature of a discretion, one which involves a decision by the Tribunal as to the course which it will take. Like any statutory discretionary power, it is subject to the presumption of the law that the legislature intends the power to be exercised reasonably1. Section 426A is to be construed accordingly…
10.In the joint judgment in Minister for Immigration and Citizenship v Li3 it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at4, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational5. None of these descriptions could be applied to the Tribunal's decision in the present case…
13.The Migration Act10 requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case11. Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is not to be exercised in a way which would be contrary to the others. Consistently with what has earlier been discussed, it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case…
16.The primary judge's reasoning implies an obligation on the part of the Tribunal which would apply in most, if not all, cases where there had been no response to the invitation to attend. No such obligation is to be found as expressed or to be implied in the statute. The fact that the Tribunal could contact the respondents is but a factor which it could take into account in deciding whether to proceed to make its decision on the evidence before it.
At [69], Gageler J (as his Honour then was) reasoned (footnotes omitted):
69.Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that "no sensible [Tribunal] acting with due appreciation of its responsibilities"101 could have taken that course.
The reasons provided in the Tribunal’s decision in the present case demonstrated an evident and intelligible justification for its decision to dismiss the application: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne J, Kiefel J (as her Honour then was) and Bell J. Those reasons, which are set out above, took into account the correctness of the hearing notification, the warning that had been provided regarding the consequences of non-appearance, the fact that no return to sender notification had been received, the multiple attempts that had been made to contact the applicant in writing and by phone, and the fact that the phone number he had provided to the Tribunal in connection with the review appeared to have been disconnected.
In these circumstances, I find that the Tribunal’s exercise of discretion was not legally unreasonable.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 11 January 2024
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