AXZ17 v Minister for Immigration

[2017] FCCA 2569

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXZ17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2569

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – decision to proceed with the hearing was open to the Tribunal pursuant to s 426A – applicant taken to have received the email on the date that it was transmitted under s 441C(5) – Tribunal complied with its statutory obligations – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.35, 426A, 441A, 44CA, 476

Applicant: AXZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 648 of 2017

Judgment of: Judge Street

Hearing date: 24 October 2017

Date of Last Submission: 24 October 2017

Delivered at: Sydney

Delivered on: 24 October 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms K Evans
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 648 of 2017

AXZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 February 2017 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Malaysia and his claims were assessed against that country. On 14 September 2015 the applicant was granted a three month multiple entry Electronic Tourist (subclass UD-601) visa which was valid until 18 December 2015.

3. On 18 September 2015 the applicant arrived in Australia. It appears the applicant remained unlawfully in Australia until 18 September 2015 and the applicant lodged an application for protection on 8 April 2016. 

4. The applicant claimed to fear harm by reason of being discriminated against in Malaysia because he is an ethnic Chinese. On 19 May 2016 a delegate found the applicant failed to meet the criteria for the grant of the visa. 

The Tribunal’s decision

1. The applicant applied for review on 15 July 2016 and in relation to correspondence details provided both an address and an email address.  On 31 January 2017 the Tribunal sent to the email address identified on the application for review, an invitation to the applicant to appear at a hearing on 24 February 2017. That invitation also included a response to hearing invitation which was not responded to by the applicant. The hearing record for 24 February 2017 identifies that the applicant failed to appear. That letter on 31 January 2017 also advised that the Tribunal was unable to make a favourable decision on the matter before it and advised the applicant that if he does not attend the hearing or provide a reason as to why he is unable to attend the hearing, a decision may be made on the material without taking any further or allowing him to appear before the Tribunal. 

2. The Tribunal in its reasons dated 24 February 2017 identified the background to the application for review. The Tribunal identified the applicant’s claims advanced in support of the application and referred to the invitation sent to the applicant to appear at the hearing on 24 February 2017. The Tribunal noted that the applicant was advised in that letter sent by email, that the Tribunal was unable to make a favourable finding on the material before the Tribunal and that the applicant was advised that the Tribunal may make a decision on the material before it without taking any further action to allow the applicant to appear before it if he does not attend the hearing.

3. The Tribunal found that it was satisfied the applicant had been invited to attend a hearing and that the correspondence was sent to the email address provided by the applicant in support of the application for review. The Tribunal noted that the applicant has not sought a postponement of the hearing and has not contacted the Tribunal to explain his failure to attend the hearing. It was in those circumstances that the Tribunal pursuant to s 426A of the Act decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

4. The Tribunal was not satisfied the applicant experienced serious harm amounting to persecution or that he experienced significant harm in Malaysia. The Tribunal was not satisfied there is a real chance the applicant will experience serious harm for reasons of his Chinese race ethnicity from Malay gangs or any other persons for any other reason, or that there is a real risk he will suffer significant harm from Malay gangs or any other persons upon his return to Malaysia.

5. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group or his political opinion, if he returns to Malaysia now or in the reasonably foreseeable future. The Tribunal was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that he will suffer significant harm. 

6. The Tribunal found that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. The Tribunal was not satisfied that the applicant is a person in respect for whom Australia has protection obligations under s 36(2)(aa) of the Act, and affirmed the decision under review.

Before this Court   

1. On 6 March 2017 the applicant applied to this Court for review.  On 22 June 2017 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

2. At the hearing today the Court identified the evidence and explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review by the Tribunal. The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed with costs.

3. The Court explained that it had identified the evidence and explained to the applicant that it would now hear submissions from the applicant in support of the grounds in the applicant’s application and as to why the applicant contended that the Tribunal’s decision was unlawful or unfair.  The Court explained that it would then give the solicitor for the first respondent an opportunity to put submissions and then hear submissions from the applicant in reply. The applicant confirmed that he understood what was said by the Court.

4. The applicant confirmed that he had received and had read to him the submissions of the first respondent. The Court explained to the applicant that the submissions of the first respondent explain why the first respondent submits that the grounds in the application failed to make out any relevant legal error. The Court also explained to the applicant that the submissions of the first respondent explain why the first respondent submits that the Tribunal’s decision is not unlawful or unfair. 

5. From the bar table, the applicant maintained that he had not been sent a letter and that he only received the email a month after it was sent, and that the time to attend the hearing had effectively expired. No affidavit evidence was put on by the applicant in support of the same. The applicant complained that he had not been sent a letter to his address. 

6. The first respondent relied upon the written submissions in that the Tribunal communicated with the applicant in accordance s 441A(5)(b) of the Act which permits transmission by email to the email address provided to the Tribunal by the recipient in connection with a review. In the present case, the applicant provided an email address to the Tribunal in connection with the review as identified on the review application.

7. The Court raised with the applicant in reply by the applicant that the Court book identified that the review application which identified the applicant’s address. The applicant confirmed that that was his email address. The Court raised with the applicant the statutory provisions by reason of which under s 441C(5) of the Act, the applicant is taken to have received the email on the date that it was transmitted.  The applicant maintained that he had not received the email until about a month later and was then too late.

8. The applicant then referred to opening the email about a month later. At this point the applicant then indicated that he wished to seek an adjournment so as to be able to provide witnesses in respect of the problem with his computer. 

Adjournment application raised from the bar table

1. No earlier notice of an adjournment application had been made by the applicant and the adjournment was opposed by the first respondent.  The Court sought to explore with the applicant what would be the utility of the adjournment in relation to the nature of the evidence that would be given and the applicant referred to a problem with his computer. The Court raised with the applicant why it was if he had information that was relevant he had not had a proper opportunity to do so already as a result of the proceedings having been commenced on 6 March 2017.  The applicant did not proffer any explanation as to why he had not had a proper opportunity already.

2. The Court is not satisfied that there would be any utility in granting an adjournment. On the face of the material, the statutory provisions give rise to circumstances in which the material the applicant proposed to put forward would not give rise to any jurisdictional error.  In the circumstances, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice and the adjournment was refused.

3. Whilst the applicant maintained that he did not become aware of the email until about a month later, the applicant’s reference to opening the email was raised by the Court with the applicant and the applicant proffered no satisfactory explanation as to why he was unable to open the email at the time it was received. Nothing said by the applicant from the bar table identified any jurisdictional error. 

4. The grounds of the application are as follows:

   1. AAT is unfair to me.

   2. AAT was not giving me a fair chance

   3. AAT made a decision without fair consideration

   4. I should be given another chance for my application

Ground 1

1. In relation to ground 1, a generalised assertion of unfairness does not establish any relevant legal error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, a finding by the Tribunal that the applicant had been invited to attend a hearing was open to the Tribunal and the decision of the Tribunal to proceed to determine the review under s 426A of the Act was not unreasonable and cannot be said to lack an evident and intelligible justification. 

2. On the face of the material before the Court, there was no failure by the Tribunal to comply with its statutory obligations and no failure by the Tribunal to comply with the obligations of procedural fairness. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, this appears to be a complaint in relation to the notification sent to the applicant to attend the hearing. A notification was sent by the Tribunal in compliance with the statutory provisions. The applicant was taken to have received the email on the date it was sent to the email address provided by the applicant to the Tribunal for the purpose of the review. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the Tribunal had sent a letter to the applicant’s identified email address in the application for review informing the applicant that it was unable to make a favourable decision on the material presently before it. No satisfactory explanation has been given by the applicant as to why he did not open the email earlier than allegedly one month after it was sent. The decision of the Tribunal reflects an orthodox approach and the decision, pursuant to s 426A of the Act to proceed to make a determination was open to the Tribunal.

2. The Tribunal considered the material before it and made adverse credibility findings that were open on the material before the Tribunal.  There is no substance in the contention that the Tribunal failed to give consideration to the material before the Tribunal. No jurisdictional error is made out by ground 3. 

Ground 4

1. In relation to ground 4, this Court does not have jurisdiction and does not have power to decide the application on compassionate grounds.  The request for another chance does not identify any jurisdictional error by the Tribunal. No jurisdictional error is made out by ground 4. 

2. In these circumstances, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 10 November 2017