ATT16 v Minister for Immigration
[2020] FCCA 2449
•15 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATT16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2449 |
| Catchwords: MIGRATION – Protection visa – where applicant failed to attend interview with delegate – where applicant failed to attend Tribunal hearing due to ‘human error’ on their own behalf– where application for reinstatement refused by Tribunal – where applicant seeks judicial review – where applicant failed to attend Court hearing – where there has been no error in law –application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(e). Migration Act 1958 (Cth), ss 36, 35, 425A, 426, 426A, 441A, 441G, 474, 476 |
| Cases cited: AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 Minister for Immigration v Li (2013) 249 CLR 332 |
| Applicant: | ATT16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 690 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 13 August 2020 |
| Date of Last Submission: | 13 August 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 15 October 2020 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor advocate for the Respondents: | Ms K. Whittemore |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The orders of the Court are as follows:
Pursuant to section 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before this Court by audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The applicant have leave to amend the application filed on 6 April 2016, so as to seek review of the decision of the Administrative Appeals Tribunal made on 3 March 2016 dismissing his application for review.
The amended application be dismissed.
The applicant pay the costs of the first respondent, fixed in the sum of $2,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 690 of 2016
| ATT16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from ex tempore reasons)
Introduction
By application dated 6 April 2016, as amended by leave in the course of the hearing, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 March 2016, affirming its decision to dismiss his application dated 3 March 2016. The application to the Tribunal sought review of a decision of a delegate of the first respondent (Minister), refusing to grant him a Protection (Class XA) visa (visa), pursuant to section 65 of the Migration Act 1958 (Cth) (Act).
Background
The applicant, a male citizen of Punjabi ethnicity, aged 32 years, first came to Australia on 13 August 2009 as the holder of a Student Vocational Education and Training Sector (TU), subclass 572 (student visa) that was valid until 22 November 2011.
On 22 November 2011, the applicant applied for a further student visa. This application was refused on 1 June 2012 as the applicant failed to satisfy the Public Interest Criterion 4020. Of note, the delegate found that the applicant had provided a falsified bank statement in support of his student application.
In the period 28 January until 12 March 2013, the applicant travelled outside Australia on a Bridging visa (Class WB, subclass 020).
On 21 October 2013, the then Migration Review Tribunal affirmed the delegate’s decision in refusing the Student visa application.
On 17 December 2013, the applicant submitted a request for ministerial intervention, this request was refused.
On 4 September 2014, the applicant applied for the visa, claiming fear of harm on grounds that other religious groups were opposed to his new religion (Jehovah’s Witness). He appointed a lawyer as his representative for the purposes of his application.
Claims to protection
The applicant made the following claims in his application for a Protection visa:
a)he was previously of Sikh religion but had converted to the religion of, and practiced by the Jehovah’s Witness;
b)he was threatened with harm by the religious leaders when he returned to India, only escaping with the help of other Jehovah’s Witnesses;
c)that he fears physical harm and death were he to return to India;
d)he would not last long in India and had no family or residence in India to protect him; and
e)he feared that he would be persecuted by the police, as they are Sikhs and Hindus.
Processing of application
On 15 September 2014, the applicant was invited to attend an interview with the delegate of the Minister. The applicant did not attend that interview. Nor did he provide any personal identifiers or other information as he had been afforded an opportunity to do.
On 18 December 2014, a delegate of the Minister advised the applicant that his visa application had been refused.
Delegate’s decision
The delegate found that ‘the applicant’s claims had not been substantiated, are limited and vague’ and did not accept his claims to be credible.
The delegate also found that there was no evidence to support his claims of threats from other religious leaders or that he had a genuine basis for fearing harm due to his claimed conversion to that of a Jehovah’s Witness. The delegate concluded the applicant was not a person in respect of whom Australia owned protection obligations either as a refugee under s 36(2)(a), or by way of complementary protection under s 36(2(aa) of the Act.
Tribunal application
On 16 January 2016, the applicant applied to the then Refugee Review Tribunal for a review of the delegate’s decision.
On 29 January 2016, the applicant was invited to attend a hearing scheduled to take place on 3 March 2016. The invitation was sent by email to his appointed legal representative. There was no response to the invitation. Neither the applicant nor his solicitor took the opportunity to file any evidence or submissions as they had been invited to do. Although he was sent two SMS reminders of the date and time of the hearing, those messages apparently failed.
Neither the applicant nor his lawyer attended the hearing.
On 3 March 2016, the Tribunal made a decision, in light of the applicant’s non-attendance, to dismiss the application without further consideration. On that date, the applicant’s lawyer was advised of that decision and the reasons why it had been made.
On 7 March 2016, the Tribunal received a request to reinstate the application, which application was made on the basis that the applicant said he had mistaken the date of the hearing.
Tribunal’s decision on reinstatement
On 15 March 2016, the Tribunal considered the application for reinstatement and made a decision to confirm its original decision.
In reaffirming the decision to dismiss the application for review, the Tribunal provided a statement of its decision and reasons for doing so (Reasons). In substance, the Tribunal reasoned as follows:
a)its communication was effective and the applicant was correctly notified of the time and date of the hearing;
b)that human error was not a satisfactory reason to reinstate the application in all the circumstances;
c)that in consideration of the application for reinstatement, the Tribunal had regard to the information contained in the delegate’s decision;
d)that the applicant’s failure to take up the opportunity for an interview with the department to discuss his claims raised strong doubts that the applicant held a genuine fear of serious or significant harm.
The Tribunal ultimately found that upon consideration of the material and combined with the applicant’s failure to attend an interview with the department, that reinstatement was not appropriate.
Procedural history
On 6 April 2016, the applicant filed an application for judicial review of the Tribunal’s decision, together with an affidavit affirmed by the applicant to which he exhibited a copy of the reasons but adducing no further evidence in support of the application for judicial review.
On 26 April 2016, a response was filed on behalf of the minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by any jurisdictional error.
On 31 August 2016, a Registrar of this Court made orders dismissing the application, ordering the costs of the first respondent be paid by the applicant.
The order dismissing the application was made by a Registrar of the Court and was later set aside.[1]
[1] Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114.
On 6 November 2019, the application was set down for final hearing and an order was made providing the applicant with opportunities to file and serve any amended application, affidavit, court book or written submissions no later than 28 days before the final hearing. The applicant did not take any of the opportunities afforded to him by that order.
In the circumstances, the submissions filed on behalf of the Minister were responsive to the matters set out in the application. It has been necessary to consider those submissions in some detail. By those submissions, the Minister commendably pointed up an error in the application concerning the date of the decision for which review was sought and agreed to the application being amended in the course of the hearing. The Court of its own motion, amended the application.
Further, having regard to the history of the matter, and notwithstanding the applicant’s failure to appear, the Court determined that the application should be decided upon its merits: Federal Circuit Court Rules 2001, r 13.03C(1)(e).
Judicial review
If the Tribunal’s decision was a privative clause decision, it is not amenable to judicial review. A decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error. In the absence of jurisdictional error, this Court has no jurisdiction to grant relief in respect of the Tribunal’s decision.
Consideration
When the matter was called on for hearing this day, there was no appearance by or on behalf of the applicant. His non-appearance was not inconsistent with the procedural history of the matter. With the assistance of submissions made on behalf of the Minister, I determined that it was more appropriate in all the circumstances to proceed with the hearing in relation to the relief which was claimed.[2] The application for review contained three grounds of review, each of which are wholly unparticularised. They are liable to be dismissed on that ground alone, as indeed they should be. Those grounds read:
AATT (sic) took account of irrelevant considerations.
AAT erred at law.
AAT failed to take account of relevant consideration.
[2] Federal Circuit Court Rules 2001 (Cth) r 13.03C (1) (e).
Resolution
In my view, the Tribunal was entitled to proceed to dismiss the application under part 426A(1A)(b) of the Act without considering the applicant’s claims and to confirm the decision to dismiss the matter, and that those decisions were free from jurisdictional error.
I accept that the Tribunal complied with its procedural fairness obligations under pt. 7, div. 4 of the Act. The Tribunal properly invited the applicant to attend the hearing. The hearing invitation complied with the requirements of s 425A of the Act and gave the applicant notice of the day, time and place of the scheduled hearing. The notice was transmitted by email to the last email address provided to the Tribunal by the applicant in connection with the review.[3] The period of notice given was in fact more than that prescribed by the Act and regulations, and the notice contained a statement of the effect of s 426 of the Act.
[3] Act, ss 441A(5) and 441G.
In all of those circumstances, as the applicant failed to attend the hearing and provided no explanation for his non-attendance, the Tribunal’s power to proceed to dismiss the application under par.426A(1A)(b) was engaged. I also accept that in the circumstances, the Tribunal’s decision to dismiss the application was not legally unreasonable[4].
[4]Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; Singh v Minister for Immigration and Border Protection [2018] FCAFC 184 (Colvin J)
Although both SMS reminders failed to be delivered through the applicant’s nominated mobile phone number, contextually, the notification of the hearing was transmitted to the applicant’s legal representative. In my view, the Tribunal was not obliged to do anything more to ensure the applicant’s attendance at the hearing.[5]
[5] Kang v Minister for Immigration [2017] FCCA 2785 (30).
I agree that this is not a case where the Tribunal was required to take any additional steps to contact the applicant by other means in circumstances where he failed to appear.[6]
[6]AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383: [22]-[28]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.
The Tribunal clearly considered the applicant’s reasons for non-attendance provided the application for reinstatement. The Tribunal considered the applicant’s explanation that he intended to attend the hearing but did not do so due to an oversight on his part, and in recording the hearing date, had made a human error. There was nothing else before the Tribunal apart from this explanation to form a view as to whether the application should be reinstated.
For the forgoing reasons, I accept that the Tribunal’s decision to confirm the dismissal cannot be said to be legally unreasonable in circumstances where it was not satisfied that the applicant’s claim that he mistakenly recorded the date of the hearing was a satisfactory reason to reinstate the application, and in circumstances where the applicant had properly confirmed he had been correctly notified of the hearing date.
The Tribunal’s conclusion that it was not appropriate to reinstate the application was open to it on the material before it, and its reasons provided an evidenced and intelligible justification for the decision which it reached.[7]
[7] Minister for Immigration v Li [2013] 249 CLR 332, [76].
For the forgoing reasons, the application should be dismissed.
I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 15 October 2020
0
5
3