AYT16 v Minister for Immigration & Anor
[2016] FCCA 2733
•24 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYT16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2733 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision to refuse to postpone a hearing and to dismiss the review application on account of the non-attendance of the applicant - where previous postponement request was granted and the Tribunal invited the applicant to clarify issues concerning the further postponement request at the hearing – applicant invited to seek reinstatement of his application following the dismissal - no request for reinstatement – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.360, 425, 426A, 426B, 430A, 441C, 477 Migration Amendment (Protection and Other Measures) Act 2015 (Cth) |
| Applicant: | AYT16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 997 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Mr D Eberl of Australian Government Solicitor |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application under s.476 of the Migration Act is extended up to and including 26 April 2016.
The application filed on 26 April 2016 is dismissed
The application, as amended on 12 October 2016, is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 997 of 2016
| AYT16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
By application filed on 26 April 2016 the applicant sought review of a decision of the Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (Tribunal), made on 1 April 2016. The Tribunal in that decision had confirmed an earlier decision to dismiss a protection visa application on account of the non-attendance of the applicant at the hearing to which he was invited.
It was apparent that the Tribunal operated under new provisions of the Migration Act which empower the Tribunal to dismiss applications on account of non-attendance without dealing with the merits of the visa application. The exercise of the power of dismissal is subject to a right to seek reinstatement. The applicant had sought judicial review of the second decision, that is the confirmation of the decision to dismiss following the expiration of the period available for seeking reinstatement.
Background facts relating to the matter are otherwise set out in legal submissions filed on behalf of the Minister on 21 September 2016.
Background
The applicant is a citizen of Pakistan. He first arrived in Australia on a tourist visa on 22 August 2013. He lodged an application for a protection visa on 4 April 2014. In his protection visa application, the applicant claimed to fear harm in Pakistan due to his conversion from Sunni Islam to Shia Islam in 1996 so that he could marry his wife, and because of threats relating to extortion by his brothers (principally one who has criminal connections), which resulted in his brothers kidnapping his children and extorting money from him at gunpoint in 2012. The applicant left Pakistan in 2013 and fears he will be killed if he returns.
The protection visa was refused by the delegate of the Minister on 31 October 2014.[1]
[1] Court Book (CB) 103 – 127.
Tribunal Process and Decisions
On 27 November 2014, the applicant applied for review of that decision with the Tribunal.[2] At the time, he was assisted by a registered migration agent and lawyer. The applicant provided supporting documents to the Tribunal in July 2015.[3] No further action was taken in relation to the review until 28 January 2016, when the Tribunal invited the applicant to attend a hearing on 3 March 2016.[4]
[2] CB 128 - 129
[3] CB 133 - 144
[4] CB 145 - 148
On 1 March 2016, the applicant’s migration agent wrote to the Tribunal saying that the applicant would not be able to attend the hearing due to stress and anxiety, high blood pressure and diabetes, which had been elevated due to the death of an immediate family member in Pakistan.[5] A medical certificate was provided, as well as other documents in support. The Tribunal telephoned the agent indicating a one week adjournment might be granted.[6] The agent asked for more time.[7] The Tribunal agreed to reschedule the hearing to 16 March 2016 (13 days later).[8] In the new invitation (dated 1 March 2016) to attend hearing, the letter stated that if the applicant did not attend the hearing and a postponement of the hearing was not granted, the Tribunal might make a decision on his review application without further notice or dismiss the application.
[5] CB 151 - 157
[6] CB 150
[7] CB 150
[8] CB 158 - 161
On 14 March 2016, the applicant’s agent wrote to the Tribunal requesting a further postponement of two to three weeks.[9] He provided a medical certificate from a doctor in Sydney who stated that the applicant needed time to recover from the death of his brother who was killed in Pakistan on 23 February 2016 and that he would be unfit until 2 April 2016. The same day, the Tribunal contacted the applicant’s representative by phone and requested a death certificate in relation to the applicant’s brother.[10] On 15 March 2016, the applicant’s agent provided the death certificate which stated that the brother died on 12 January 2016.[11]
[9] CB 162 – 166
[10] CB 167
[11] CB 168 – 169
The Tribunal wrote to the applicant’s agent the same day refusing the further adjournment and stating that the medical certificates and death certificate provided different dates for the death and stated that the hearing would proceed on 16 March 2016 so that the Tribunal could discuss these issues and adjourn if necessary.[12] The applicant’s agent advised the Tribunal that the applicant said he would not be attending due to his health conditions.[13]
[12] CB 172 – 173
[13] CB 174 – 175
The applicant did not attend the hearing and on 16 March 2016, the Tribunal made a decision pursuant to s.426A(1A)(b) of the Migration Act 1958 (Cth) (the Migration Act) dismissing the application due to the applicant’s non-appearance.[14] The Tribunal noted that it received a further request for an adjournment so that the applicant could recover from his brother’s death on ‘23 February 2016’, but the medical certificate and death certificate provided two further different dates for the brother’s death. The Tribunal noted that it informed the applicant that the hearing would proceed to discuss these issues, the applicant had not given an explanation for the variation in the dates and had not provided any further medical evidence about the health issues affecting him. The Tribunal therefore considered that no satisfactory explanation had been given for not attending and dismissed the application.
[14] CB 177 – 180
Notification of the dismissal was sent to the applicant’s agent by email on 17 March 2016 and he was advised that he could seek reinstatement of the application by 31 March 2016.[15] When no reinstatement application was received, on 1 April 2016, the Tribunal affirmed the decision under review as no application for reinstatement had been made.[16]
[15] CB 177 – 180
[16] CB 181 – 187
Present proceedings
The matter came before me for a show cause hearing on 28 September 2016. At that time I formed the view that the application to review the confirmation decision by the Tribunal was doomed because the applicant, not having sought reinstatement of his application before the Tribunal following the dismissal decision, could not succeed without putting in issue that dismissal decision. This was because the applicant had not sought reinstatement of his application before the Tribunal and, hence, the Tribunal was required by the Migration Act to confirm the dismissal.
It may have been that the applicant had sought review of the second Tribunal decision because that application was filed within the prescribed period under s.477(1) of the Migration Act. If he had sought review of the non-attendance decision, an extension of time would have been required.
In the circumstances, I explained the position to the applicant and gave him the opportunity to amend his judicial review application and to provide written submissions in support of any such amendment. I listed the matter for a final hearing today. That listing was somewhat ambiguous. I had in mind that the application, if not amended, would be disposed of on a final basis today.
If the application was amended which required an extension of time, that would be an interlocutory decision of the Court. However, it was open to the Court to proceed directly to a hearing on the merits of the application, if amended, were an extension of time granted.
The application was amended on 12 October 2016. The amended application upon which the applicant now relies seeks review of the first Tribunal decision, that is the non-attendance decision made on 16 March 2016 and notified the following day. The applicant sought an extension of time under s.477(2) of the Migration Act for the amended application.
In further submissions, filed on 19 October 2016, the Minister opposed an extension of time on the basis that, although the delay was only a few days, the application as amended lacked merit. I formed the view that the interests of the administration of justice required the granting of an extension of time in circumstances where the original application had been filed in time. The Court had pointed out a difficulty with that application and the Court had, in effect, invited the amended application.
I also had in mind that the case raised for consideration new provisions of the Migration Act upon which there does not currently appear to be any judicial guidance. I granted the extension of time sought and, with the agreement of the parties, proceeded directly to a final hearing of the application.
Consideration
I accept the Minister’s submissions concerning the relevant legislation provisions. There have been recent amendments to the Migration Act in relation to the powers of the Tribunal when an applicant fails to appear at a scheduled hearing. The amendments were made by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) under schedule 4, item 26, and came into effect on 18 April 2015. Pursuant to schedule 4 item 34(2), the amendments to s.426A applied in the following circumstances (noting that ‘application’ refers to the application to the Tribunal):
(a) the application is made on or after the commencement of this Schedule; or
(b) both:
(i) the application was made before the commencement of this Schedule, but a decision on the review had not been made as at the commencement of this Schedule; and
(ii) on or after the commencement of this Schedule, the applicant is invited to appear before the Migration Review Tribunal under section 360 of that Act, or the Refugee Review Tribunal under section 425 of that Act, as the case may be, for the purposes of the review.
In the present case, the application for review was made before the commencement of the amending act, but a decision had not yet been made on the review. The amendments to s.426A accordingly applied in the present case, and the version of s.426A of the Act which applied was as follows:
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(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.
Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b) confirm the decision to dismiss the application, by written statement under section 430.
Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(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.
Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
The hearing invitations sent to the applicant complied with the requirements of s.426A of the Migration Act. There is no dispute that the applicant received the hearing invitations on or around the date of the hearing invitation, being 28 January 2016 and 1 March 2016.
When the applicant failed to attend the scheduled hearing, s.426A(1)(b) applied, and the Tribunal was entitled pursuant to s.426A(1A)(b) to dismiss the application or make a decision on the application with the information before it.
The applicant did not request a reinstatement of the application at any stage either during or after the 14 day period stated in s.426A(1B).
The applicant has not provided any written submissions in support of his application. I gave him the opportunity to make oral submissions. The applicant says that he was unwell at the time of the rescheduled Tribunal hearing, and that because he was unwell he could not attend. The applicant’s migration agent had advised the Tribunal of the applicant’s intention not to attend by email on the day of the hearing. The agent did not, however, in that email apprise the Tribunal of any new medical reason why the applicant could not attend.
It was or should have been apparent from the Tribunal’s letter to the agent dated 15 March 2016, advising of the refusal of the second postponement request that the hearing on 16 March 2016 would be an opportunity for the applicant to explain why a further adjournment should be granted. As explained in the background above, the applicant had not assisted his cause by providing three different dates of death for his brother. This, it appears, caused the Tribunal to doubt on their face the documents the applicant had provided.
The hearing opportunity on 16 March 2016 would have enabled the applicant to explain the circumstances of those different dates, and if he was not well enough to attend in person he could have requested the opportunity to attend by telephone. To the extent that some injustice was occasioned by the Tribunal’s non-attendance decision, the Migration Act, as amended, provided a remedy. The remedy was to seek reinstatement of the review application in accordance with the notification issued by the Tribunal.
The applicant had 14 days to seek that reinstatement. He did not take up that opportunity. The applicant told me from the bar table today that he was having difficulties with his agent and that money may have been an issue. That may have been so, but the only evidence before me is the applicant’s affidavit accompanying his original application and the book of relevant documents. The book of relevant documents discloses that the applicant’s agent was working diligently on his behalf at least up until 16 March 2016.
In my view, it was open to the Tribunal on the material before it to refuse the second adjournment request made on behalf of the applicant. Further, it was open to the Tribunal on the material before it to dismiss the application on 16 March 2016 when the applicant failed to appear. The later confirmation decision made by the Tribunal was a necessary consequence of the applicant’s failure to seek reinstatement of his review application.
The ground advanced by the applicant, both in his original and amended application, asserts a failure to take medical evidence into account. It is plain, however, that the Tribunal did take account of the material that was furnished to it by the applicant’s agent.
I have formed the view that the decisions of the Tribunal, both to refuse the second adjournment request and to dismiss the application on account of the applicant’s non-attendance, are free from any jurisdictional error. I will accordingly dismiss the application as amended.
The Minister also seeks the dismissal of the application as originally filed. In circumstances where the amended application deals with a different Tribunal decision, it is appropriate and probably necessary to address that issue.
As I explained to the applicant at the show cause hearing, the second Tribunal decision was a necessary consequence of the applicant’s failure to seek reinstatement of his application. The Tribunal has no discretion in the matter where an applicant fails to exercise that option. There being no error in the dismissal decision and in the absence of any application for reinstatement, there is no error in the confirmation decision.
The Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order.
I will order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,206.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 31 October 2016
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