Awq21 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 283

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AWQ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 283

File number:	MLG 627 of 2021
Judgment of:	JUDGE KENDALL
Date of judgment:	25 March 2024
Catchwords:	MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – jurisdictional error identified by the Minister – unable to obtain the applicant’s consent to remit matter – Court satisfied the Tribunal erred – writs issued.
Legislation:	Migration Act 1958 (Cth), s 476
Division:	Division 2 General Federal Law
Number of paragraphs:	33
Date of hearing:	25 March 2024
Place:	Perth
Applicant:	No appearance by or on behalf of the applicant
Counsel for the First Respondent:	Ms T Weir
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	HWL Ebsworth Lawyers

ORDERS

MLG 627 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AWQ21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	25 MARCH 2024

THE COURT ORDERS THAT:

1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

3.A writ of certiorari issue directed to the second respondent, quashing the second respondent’s decision dated 18 March 2021.

4.A writ of mandamus issue directed to the second respondent, requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 16 December 2016 according to law.

5.The first respondent pay the applicant’s costs that he is entitled to as a self-represented litigant.

6.Written reasons for judgment be published from Chambers at a later date.

AND THE COURT NOTES THAT:

The first respondent accepts that the decision of the second respondent dated 18 March 2021 is affected by jurisdictional error, as the second respondent failed to afford the applicant procedural fairness. The second respondent affirmed the decision of the first respondent in part because of the applicant’s delay in making a protection visa application following his entry into Australia, which was not an issue originally raised by the first respondent in its decision, or by the second respondent in the hearing with the applicant.

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 KENDALL:

INTRODUCTION

1. This matter was listed for a directions hearing before the Court on 25 March 2024 (by video link). When the matter was called, there was no appearance by or on behalf the applicant.

2. The Court made the following orders:

   1.The parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

   2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

   3.A writ of certiorari issue directed to the second respondent, quashing the second respondent’s decision dated 18 March 2021.

   4.A writ of mandamus issue directed to the second respondent, requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 16 December 2016 according to law.

   5.The first respondent pay the applicant’s costs that he is entitled to as a self-represented litigant.

   6.        Written reasons for judgment be published from Chambers at a later date.

3. The Court also noted that:

   The first respondent accepts that the decision of the second respondent dated 18 March 2021 is affected by jurisdictional error, as the second respondent failed to afford the applicant procedural fairness. The second respondent affirmed the decision of the first respondent in part because of the applicant’s delay in making a protection visa application following his entry into Australia, which was not an issue originally raised by the first respondent in its decision, or by the second respondent in the hearing with the applicant.

4. These reasons for judgment are those referred to in order 6 above. They explain why the Court proceeded to issue writs in this matter despite their being no appearance by the applicant before this Court on 25 March 2024.

   BACKGROUND

5. Before the Court is an application for judicial review filed by the applicant in the Melbourne Registry of this Court on 6 April 2021 (the “application”). That application was accompanied by an affidavit (deposed and filed by the applicant on 6 April 2021).

6. The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 18 March 2021.

7. On 6 March 2023, Ms Tegan Weir (“Ms Weir”), solicitor for the first respondent (the “Minister”), sent an email to the applicant at the email address listed in his application (as filed in this Court on 6 April 2021). The email proposed consent orders (remitting the matter to the Tribunal) for the applicant’s review and requested that he provide evidence of any costs he had incurred during the proceedings (see the affidavit of Mr Weir affirmed and filed on 12 March 2024 (the “Weir affidavit”), pp 7-9).

8. That email provided as follows (the Weir affidavit, p 7):

   Dear applicant

   AWQ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor - FCC MLG627/2021
   Proposed orders

   Our reference: 1043764

   We refer to your judicial review application. We act for the Minister.

   Please see attached draft consent orders. We are instructed to concede the Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error, detailed in the note following the proposed orders. If the court makes the proposed orders, your matter will be sent back to the Tribunal and the Tribunal will undertake a fresh review.

   To allow us to complete the draft consent orders, please confirm the legal costs that you have incurred and provide us with evidence to substantiate those costs.

   Please let me know if you have any questions.

9. Attached to the email (detailed above) were proposed consent orders that provided as follows (the Weir affidavit, pp 8-9):

   THE COURT ORDERS BY CONSENT THAT:

   1.The First Respondent's name be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

   2.A writ of certiorari issue directed to the Second Respondent, quashing the Second Respondent's decision dated 18 March 2021.

   3.A writ of mandamus issue directed to the Second Respondent, requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 16 December 2016 according to law.

   4.The First Respondent to pay the Applicants' costs fixed in the amount of [INSERT].

   THE COURT NOTES THAT:

   The First Respondent accepts that the decision of the Second Respondent dated 18 March 2021 is affected by jurisdictional error, as the Tribunal failed to afford the Applicant procedural fairness. The Second Respondent affirmed the decision of the First Respondent in part because of the Applicant's delay in making a Protection visa application following his entry into Australia, which was not an issue originally raised by the First Respondent in its decision, or by the Second Respondent in the hearing with the Applicant.

10. On 22 June 2023, Mr Spencer Davis (“Mr Davis”) (a paralegal of the firm representing the Minister) attempted to phone the applicant using the mobile phone number included by the applicant in his application filed with the Court (on 6 April 2021). Mr Davis was “unable to reach the [a]pplicant and left a voice message” for him (the Weir affidavit, p 2 at [4]).

11. On 4 October 2023, Mr Jasper Freeman (“Mr Freeman”) (a paralegal of the firm representing the Minister) attempted to phone the applicant (again on the mobile phone number included by the applicant in his application). Mr Freeman was “unable to reach the [a]pplicant”. Mr Freeman also attempted to phone the applicant using an alternate mobile phone number (the “alternate contact number”) listed in the records of the Department of Home Affairs (the “Department”). That phone call was answered by an unidentified woman, however, when Mr Freeman “attempted to confirm the identity of the person who answered the call, she replied ‘I’m sorry’, and terminated the call” (the Weir affidavit, p 3 at [5]).

12. On 8 November 2023, Mr Joseph Wilczer (“Mr Wilczer”) (a paralegal of the firm representing the Minister) attempted to call the applicant using the alternate contact number provided by the Department. That phone call “was answered by a person who identified themselves as ‘Judy’. When Mr Wilczer asked to speak to the [a]pplicant, Judy advised that the phone number must be incorrect” (the Weir affidavit, p 3 at [6]).

13. That same day (being on 8 November 2023), Mr Wilczer also sent an email to the applicant,  again attaching proposed consent orders (as detailed above), seeking that the applicant review the orders and provide evidence of any costs he incurred (the Weir affidavit, p 11).

14. On 9 November 2023, Ms Weir sent two letters to the applicant by registered post. Both letters enclosed the proposed consent orders (set out above) and were sent to the applicant using the address included in his application to this Court and to the address listed in the Department’s records for the applicant (the “postal addresses”) (the Weir affidavit, p 3 at [8] and pp 14 & 16).

15. On 6 February 2024, Ms Weir sent a further email to the applicant (using the email address provided by the applicant in his application to this Court), again providing a copy of he proposed consent orders (detailed above). The email also put the applicant on notice that, if no response was received from him, a copy of the proposed orders would be sent to the Court for consideration (the Weir affidavit, p 18).

16. On 9 February 2024, the Court’s Migration Team was contacted by Ms Weir (via email). In that email, Ms Weir advised as follows (without alteration):

    Dear Migration Team

    AWQ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor FCC MLG627/2021
    Request for Direction hearing listing

    Our reference:  1043764

    We refer to the above matter which does not have a return date.

    Please be advised that the Minister has identified an error in the Tribunal’s decision and have been trying to obtain the applicants’ consent to remit the matter for the past 6 months.

    However, to date, we have not received a response from the Applicant.

    In those circumstances, the Minister seeks to exercise liberty to apply and respectfully request the matter be listed for directions.

    Please do not hesitate to contact me.

17. On 13 February 2024, the Court’s Migration Team confirmed to Ms Weir that the matter would shortly be listed for a directions hearing before a judge and asked that she “file an affidavit annexing the attempted communications with the applicant” and provide proposed orders for the Court’s consideration.

18. That same day (being on 13 February 2024), the Migration Team also notified the parties that the matter had been listed for a directions hearing before this Court on 8 March 2024 at 2.00pm (AEDT) / 11.00am (AWST) by video link.

19. On 14 February 2024, Ms Weir again sent an email to the applicant confirming the matter had been listed for a directions hearing before the Court and providing him with a further copy of the proposed consent orders (detailed above) (the Weir affidavit, p 20).

20. That same day (also on 14 February 2024), Ms Weir sent two letters to the applicant’s postal addresses, each enclosing a copy of the proposed consent orders (outlined above) for the applicant’s consideration (the Weir affidavit, pp 22 & 24).

21. On 26 February 2024, the Court notified the parties (by email) that the directions hearing in this matter had been re-listed and would take place on 25 March 2024 (by video link) at 2.30pm (AEDT) / 11.30am (AWST).

22. On 12 March 2024, Ms Weir sent an email to the applicant reminding him of the new directions hearing date and again providing him with proposed consent orders (largely in the terms outlined above) for his consideration (the Weir affidavit, p 26-29).

23. That same day (being on 12 March 2024), the Weir affidavit was filed on behalf of the Minister. That affidavit (as outlined above) was affirmed by Ms Weir on 12 March 2024 and annexed the correspondence from Minister’s representatives to the applicant between 6 March 2023 and 12 March 2024 referred to above.

24. On 22 March 2024, the parties were reminded by the Court of the directions hearing (date and time) and provided with instructions on how that directions hearing could be attended (by video link using Microsoft Teams).

25. As outlined above, when the matter came before the Court (on 25 March 2024), there was no appearance by or on behalf of the applicant. Ms Weir appeared on behalf of the Minister at the directions hearing (by video link). An interpreter in the Mandarin language had also been engaged to assist but, in the circumstances, was ultimately not required.

26. The Court confirmed the correspondence before it, including the correspondence between the Court and the parties regarding the listing (and re-listing) of the directions hearing, which was tendered and referenced as Exhibit 1.

27. A copy of the decision made by a delegate of the first respondent on 16 December 2016 was tendered and referenced as Exhibit 2.

28. The affidavit filed by the applicant on 6 April 2021 (annexing a copy of the Tribunal’s decision dated 18 March 2021) was taken as read and in evidence. The Weir affidavit was also taken as read and in evidence at the directions hearing.

29. The Court has reviewed the materials contained in Exhibits 1 and 2 and the affidavits before it and is satisfied that there was a jurisdictional error (as identified by the Minister) on the part of the Tribunal. The Court is also satisfied that it is appropriate for the matter to be remitted to the Tribunal for reconsideration.

30. Relevantly, the Court notes that the decision of the Tribunal is affected by jurisdictional error because the Tribunal failed to afford the applicant procedural fairness. In particular, the Tribunal affirmed the delegate’s decision in this matter in part based on the applicant’s delay in applying for a protection visa (following his entry into Australia). This had not been an issue which was raised by the Minister (by way of the delegate’s decision dated 16 December 2016). The Tribunal also failed to raise this with the applicant prior to or at the hearing before it.

31. In relation to costs, the Court determined that it was preferable to preserve the applicant’s rights in relation to costs.  In this regard, the Court notes the difficulties the Minister has faced contacting the applicant, the fact that the applicant does not appear to be fluent in the English language (or at least requested an interpreter in his application to the Court) and does not appear to have legal assistance. 

32. In the circumstances, the Court made an order for the Minister to pay to the applicant any costs that he is entitled to as a self-represented litigant (to the extent that any costs are indeed payable).

    CONCLUSION

33. In the circumstances, the Court made orders remitting the matter to the Tribunal for reconsideration (and noting the details of the jurisdictional error on the part of the Tribunal) (see [2] and [3] above).

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       28 March 2024