AXI15 v Minister for Immigration

[2016] FCCA 947

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXI15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 947

Catchwords:
MIGRATION – Judicial review – applicant claims his agent did not tell him about the hearing date.

Legislation:

Migration Act 1958 (Cth), ss.414, 420, 425, 426A

Cases cited:

Aneja v Minister for Immigration and Border Protection [2014] FCA 572
AZAFB v Minister for Immigration and Border Protection [2015] FCA 1283

Minister for Immigration and Citizenship v Xiujuan Li & Anor [2013] HCA 18

Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
MZAHC v Minister of Immigration & Anor [2016] FCCA 340

Applicant: AXI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1244 of 2015

Judgment of: Judge Harland

Hearing date: 12 April 2016

Date of Last Submission: 16 May 2016

Delivered at: Melbourne

Delivered on: 20 May 2016

REPRESENTATION

Counsel for the Applicant:  Mr Hands

Solicitors for the Applicant: Mano Associates

Counsel for the Respondents: Ms Symons

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application filed 2 June 2016 be dismissed.

2. That the applicant pay the first respondent’s costs fixed in the sum of $9,325.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1244 of 2015

AXI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant filed an application for a protection visa on 24 September 2012. The delegate handed down a decision on 19 December 2013. The applicant reviewed that decision and the Tribunal handed down its decision affirming the delegate’s decision on 8 May 2015.  The applicant filed an application for judicial review on 2 June 2015.

2. After the hearing whilst the judgment was reserved the applicant sought leave to file further submissions. The first respondent consented on the basis of being able to file further submissions in reply.

3. The application sets out the following grounds for review:

   a)The Tribunal has erred and fell into jurisdictional error by breaching section 420 of the Migration Act 1958 (Cth) in that despite knowing fully well that the applicant was not known about the hearing date, made an unfavourable decision on the review in his absence;

   b)The Tribunal acted unreasonably and constructively failed to review and thereby breached s.414 of the Migration Act;

   c)The Tribunal breached procedural fairness by conducting a hearing under s.426A of the Migration Act;

   d)The Tribunal breached section 425 of the Migration Act by not inviting the applicant to appear before it to give evidence and present arguments in relation to the decision under review.

4. At the hearing the applicant’s counsel conceded that the Tribunal complied with the legislative requirements pursuant to s.420, s.426A and s.425 of the Migration Act. Therefore it is not necessary for me to consider this further.

5. The applicant filed an amended application on 1 April 2016, after the respondent filed its submissions. The first respondent did not oppose leave being granted for the applicant to argue a new ground for relief. I granted that leave. The firs respondent addressed that ground in oral submissions.

6. The additional ground is “the Tribunal acted unreasonably and constructively failed to review and thereby breached section 414 of the Migration Act.”

7. The applicant’s argument focused on whether or not in the circumstances of this case the Tribunal should have made further enquiries beyond this.

8. The applicant’s counsel argued that whilst the Tribunal complied strictly with the legislation in this instance it did not afford the applicant substantial justice.  First he referred to the solicitor sending the submissions to the department instead of the Tribunal. He then referred to the address being obviously wrong when it was a New South Wales address with a Victorian postcode. He said the stakes for the applicant are high and that in all the circumstances the Tribunal acted in a way that was legally unreasonable in proceeding with the hearing in the absence of the applicant.  The applicant’s counsel referred to Minister for Immigration and Citizenship v Xiujuan Li & Anor [2013] HCA 18. This case does not assist the applicant. The High Court discusses unreasonableness in the legal sense and sets out principles which are often applied in that context. The circumstances in that case were very different. Ms Li sought an adjournment of the Tribunal hearing because she was waiting for the outcome of a second skills assessment which she said would satisfy the visa criterion. The Tribunal’s failure to grant the adjournment in those circumstances as an unreasonable exercise of its statutory power in circumstances where the adjournment was for a specific purpose and there was no evidence of delay on Ms Li’s part. The circumstances of MZAHC v Minister of Immigration & Anor [2016] FCCA 340 also involved very different circumstances to this case and does not assist the applicant’s case.

9. The applicant’s counsel submitted that the Tribunal member relied on limited country information.  He included a bundle of country information with his folder of authorities. That was misguided as that is inviting the court to engage in a merits review. I have not read that information which appears behind tabs 5 and 6 of the applicant’s bundle of authorities. With respect to the authorities provided the applicant has not complied with the Federal Circuit Court of Australia’s Practice Direction No 1 of 2015 Citations of Decisions of Australian Courts and Tribunals – I have read the authorities the applicant relied on. I make this observation for the benefit of the applicant’s legal representatives for their future reference.

10. The applicant also relied on an annexure to his counsel’s submissions which is a letter with respect to a different individual and the same migration agent. I cannot place any weight on this as there is no indication that applicant’s circumstances were identical, the letter is evidence of the agent being negligent, not fraudulent.

11. The first respondent points out that the Tribunal did go beyond the steps it was required pursuant to s.426A by contacting the applicant’s migration agent (see CB 220). The Tribunal records that the agent said the applicant had not been in contact for some months. The email details several attempts by the agent to contact the applicant over several months. The email does contain an error with respect to the postcode.

12. The Tribunal’s enquiries also extended to seeking a copy of submissions which it did not have on its file. See CB 235 [20].

13. The Tribunal did not act unreasonably. When the applicant did not attend the hearing it made enquiries of the applicant’s agent. The agent was the applicant’s authorised recipient. The Tribunal considered the applicant’s application on its merits on the material it had.

14. Whilst the applicant may well have legitimate complaints against his agent for negligence that is a matter between the applicant and his agent. It does not amount to a jurisdictional error. There is no suggestion of fraud by the agent. For example the applicant complains about the error in the address. There is nothing in the agent’s email to the Tribunal, detailing numerous attempts to contact the applicant stating that they have received returned mail undeliverable to that address. Even if it had that would not be sufficient to give rise to a complaint that the Tribunal acted unreasonably in determining the application.[1]  Nothing turns on the complaint that the agent sent his submission to the Department and not the Tribunal as that was rectified before the Tribunal made its decision. Furthermore that is conduct lacking in care and is an issue between the applicant and the agent and not a matter for the Tribunal or this Court.

    [1] See Aneja v Minister for Immigration and Border Protection [2014] FCA 572 at [25].

15. The applicant’s post hearing submissions primarily sought to rely on the decision of AZAFB v Minister for Immigration and Border Protection [2015] FCA 1283 (“AZAFB”). This decision was handed down on 4 December 2015, several months before the hearing before this Court. The applicant does not give an explanation as to why this case was not raised at the hearing. The applicant’s further submissions are brief and do not state how AZAFB assists but simply repeats that the Tribunal, being based in Melbourne should have made enquiries when presented with an address Doveton NSW 3177 which was incorrect as the address was in Victoria. This ignores the fact that the applicant had a migration agent on record as the authorised contact. The Tribunal did make contact and made enquiries which shows on the face of the agent’s response that the applicant had not been in touch for some time.

16. The respondent points out that the circumstances in AZAFB were different to the applicant’s circumstances. I accept the respondent’s submissions that North ACJ was not setting down a general principle but was dealing with the particular circumstances which were before him. The first respondent refers to Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 (“SZFHC”). I particularly note [39]. I accept the respondent’s submissions and the application of SZFHC and AZAFB. AZAFB is distinguishable from this case and in any evident is a single judge decision inconsistent with the Full Court’s decision in SZFHC.

17. The Tribunal complied with its obligations. Its actions were not legally unreasonable. The application is dismissed with costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 20 May 2016