Azc18 v Minister for Home Affairs

[2019] FCCA 3909

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZC18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3909

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal (AAT) – protection visa application – where AAT confirmed its decision to dismiss an application for non-appearance –no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425A, 426A(1A)(b), 426A(1B), 426A(1E), 426B, 430, 441A(5)

Cases cited:

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR  332
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 163 ALD 1

Applicant : AZC18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 548 of 2018

Judgment of: Judge Baird

Hearing date: 30 July 2019

Date of Last Submission: 23 July 2019

Delivered at: Sydney

Delivered on: 30 July 2019

REPRESENTATION

The Applicant  appeared in person with the assistance of a Mandarin Interpreter

Solicitors for the Respondents: Mr J Lambe, HWL Ebsworth lawyers

ORDERS

1. The application is dismissed. 

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 548 of 2018

AZC18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore, revised from transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 9 February 2018 (confirmation decision) in which the Tribunal confirmed a dismissal decision made 24 January 2018, and notified under cover of letter dated 25 January 2018. 

Background

1. The Applicant is a female citizen from China born in 1978, who arrived in Australia by plane on 6 January 2015 as the holder of a valid visitor (Class FA, sub-class 600) visa. 

2. By application dated 15 February 2015 and received by the Department of Immigration and Border Protection on 16 February 2015 the Applicant applied for a Protection (class XA) Visa

3. On 4 January 2016 a delegate of the First Respondent, the Minister for Home Affairs, sent an email to the Applicant inviting her to attend an interview on 20 January 2016.  The Applicant failed to attend the scheduled interview, and on 20 January 2016 a delegate of the Minister refused the Visa (Delegate’s Decision).

4. The Delegate’s Decision referred to the Applicant having been sent a letter by email to the stated email address advising her that a protection Visa interview had been scheduled. 

Proceeding before the Tribunal and the Tribunal’s decisions

1. On 13 February 2016, the Applicant lodged an application for review of the Delegate’s Decision with the Tribunal.  Whilst the application form indicated that the Applicant made the application herself, she provided mobile contact details and email contact details which contact details were stated to be her correspondence details (nominated email address). 

2. There was communication between the Tribunal and the nominated email address including on 16 June 2017, a letter sent by the Tribunal under cover of email advising that the Applicant’s file has been, “prepared for allocation to a Tribunal member” and that “once a hearing date has been set we will only change the date if we are satisfied that there is a very good reason to do so”.

3. On 1 November 2017, the Tribunal sent a letter to the Applicant at the nominated email address inviting the Applicant to attend a hearing scheduled for 23 January 2018 at 2 pm, and specifying the location of the hearing.  That letter contained the following statement:

   If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal.  If the Member confirms the dismissal, the decision under review is taken to be affirmed.

4. The invitation to hearing also contained information about the hearing and outlined that there existed the reinstatement process if the application was dismissed for non-appearance.

5. The evidence before me satisfied me that the nominated email address on the invitation to attend a hearing is the same contact and correspondence email address as the Applicant nominated in her application for review to the Tribunal. 

6. Three SMS hearing reminders were sent by the Tribunal to the Applicant: the first on 16 January 2018, the second on 22 January 2018, and the third, an attempted SMS message, on 23 January 2018.  Each of these SMS hearing reminders was sent to the mobile number (ending in 802) which number was the mobile number that the Applicant had set out in her application for review to the Tribunal dated 13 February 2016.

7. The last SMS hearing reminder (that on 23 January 2018) is noted in the files of the Tribunal as “delivery having failed”.  There is, however, no such note with respect to the first two SMS hearing records. 

8. The Applicant did not respond to the hearing invitation.  She did not appear at the scheduled hearing on 23 January 2018.  As I have said, the Tribunal on 24 January 2018 dismissed the application in a non‑appearance decision which decision was notified in writing to the Applicant under cover of letter dated 25 January 2018 to the nominated email address.

9. The notification of decision of 25 January 2018 also included an information sheet about dismissal of the application and informed the Applicant that within 14 days after receiving the notice of the dismissal decision the Applicant may apply in writing for reinstatement of the application.  The information sheet further informed the Applicant that if the Tribunal decided not to reinstate the application, or if the Applicant failed to apply for reinstatement within the 14 day period, the Tribunal must confirm the decision to dismiss the application.

10. The Tribunal, in that information sheet, further advised that a written statement of “our decision to reinstate the application or to confirm the dismissal of the application”, will be given to the Applicant.  The information sheet set out the consequences if the Tribunal confirmed the dismissal as follows:

    If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed.  The effect of this is that the department’s decision remains in force.

    If you think that our decision is wrong in law, you may consider seeking judicial review in the Federal Circuit Court of Australia.  If you wish to apply for review, you must do so within 35 days of the date of our decision.

11. The Applicant, thus, was notified of her right to apply for reinstatement by 8 February 2018 pursuant to s.426A(1B) of the Act. The Tribunal in its confirmation decision of 9 February 2018 proceeded to confirm its dismissal decision. . The Tribunal confirmed the decision to dismiss the application for review pursuant to s. 426A(1E) of the Act. The Tribunal, under cover of an email to the nominated email address dated 12 February 2018, emailed the Applicant the notification of decision the same date, and attached the confirmation decision and MR25 information about decisions.

12. On 1 March 2020, the Applicant applied to this Court seeking judicial review of the Tribunal’s decision dated 9 February 2018; that is the confirmation decision.  The Applicant’s affidavit in support attached the 25 January 2018 letter from the Tribunal notifying the Applicant of the dismissal decision and the cover page of the confirmation decision. 

Ground of review

1. The Applicant raises the following ground of review (without alteration):

   1.When I lodge AAT, I use the mobile [redacted – ending with 802], but AAT can’t call me through this mobile, but AAT should email me to ask me for new mobile, but AAT didn’t do it, it causes me not go for the hearing (my new mobile is [redacted]).

2. Additionally, in the Applicant’s affidavit in support the Applicant attests to the following (without alteration):

   1.If AAT emails me from my new mobile, then I can attend the AAT hearing.

   2.I can get my visa back if I attend the hearing.

Proceeding before this Court

1. The Applicant was unrepresented before this Court although she had the assistance of a Mandarin interpreter.  At the outset of the hearing Mr Lambe informed me that he had provided the Applicant with the Minister’s written submissions and that Madam Interpreter had interpreted those submissions to the Applicant before I came on the Bench.  The Court provided the Applicant with a copy of her application and her supporting affidavit.

2. At the commencement of today’s hearing the Applicant confirmed that she wished to proceed on the application and when the possibility was raised by Mr Lambe, solicitor for the Minister, that the Applicant  may have intended to seek judicial review of the dismissal decision she indicated that she wished to seek an extension if that was necessary.  She confirmed that she had no documents to present to the Court this morning in support of her application.   

3. At the outset of the hearing I explained to the Applicant that the role of the Court is very different to that of the Tribunal and that the only issue before this Court is whether or not the decision of the Tribunal is made according to law.  I explained to the Applicant that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction.  I further explained to the Applicant the disagreement with the facts and conclusions of the Tribunal rarely by itself establishes such a mistake.  I informed the Applicant that it is not for this Court to reconsider the claims to reach a different finding or conclusion.

4. The Applicant confirmed that she relied on the ground contained in the application, and she informed the Court that the application was made by another person who had translated what she said in Mandarin. 

5. I invited the Applicant to tell me what legal problems she wished to raise.  Through a number of interactions with the Court she made submissions that:

   (a)first, the reason why she did not attend last time was because she did not receive a mobile call.  She then said that possibly if she was called she possibly could not understand what was said because she does not speak much English.  

   (b)later, she said that she had received a call before but explained that she was currently at home alone.  As the hearing continued the Applicant then said that she was sorry she did not update her mobile contact details but her mobile was stolen.  She said that she had never missed a date since then which I apprehend her to mean in the course of the proceeding.  She had also said when she does get a mobile telephone call she asks her boyfriend to answer for her by which I understand, again, to engage in a conversation in English.

6. As to what her reasons were (which appear to be for her seeking the Visa), she described her personal circumstances, and that she currently has a boyfriend, and plans to have a long and stable relationship with him in Australia.  She said that she was forced to have the sterilisation procedure in China and she was seeking medical treatment in Australia.  This appeared to be following a discussion with her boyfriend. 

7. The Applicant also expressed concern that she cannot apply for a Medicare card and she does not know the reason.  She sought a Medicare card, and it ultimately transpired the card had expired.  She is waiting to undertake IVF treatment and she hoped that the Court and the Minister can give her another chance. 

8. I confirmed with the Applicant that the nominated email address of the Applicant in the application to the Tribunal was her email address at the time of filing the application to the Tribunal, and whilst before this Court the Applicant has provided a different email address and an address now in Queensland it appears that those are current email address and mail contact details as at 2018 and 2019.

Legislative provisions

1. The Tribunal dismissal decision was a decision by which the Tribunal dismissed the application under s.426A(1A)(b) of the Act. There are two conditions to be met in order for the Tribunal to exercise its discretion pursuant to s.426A of the Act:

   (a)first, the Tribunal must invite the applicant to appear at a hearing before it pursuant to s.425 of the Act; and

   (b)secondly, the applicant must fail to appear.

2. I find that the above conditions are met in the present case. In relation to the first condition, as I have noted, the Applicant was invited to appear at a hearing by letter dated 1 November 2017 communicated by way of email sent to the nominated email address. That invitation complied with the requirements of s.425A of the Act, and I note that the invitation was issued nearly three months prior to the hearing date.

3. The invitation letter to attend a hearing contained a statement to the effect of s.426A of the Act to which I have referred to above, and thus complied with the requirements of s.425A(4). The Applicant did not engage with the Tribunal’s processes, and did not apply for reinstatement.

4. I am satisfied that the method of notification of the invitation and of the dismissal decision was in accordance with s. 441A(5) of the Act. In accordance with s.426B(5) of the Act, the notification of the dismissal decision email included a copy of the written statement setting out the decision to dismiss the application under s.426A(1A)(b).

5. As I have said above, the Applicant was invited to apply for reinstatement by 8 February 2018. As no reinstatement application was received the Tribunal proceeded to confirm the decision to dismiss the application on 9 February 2018. Section 426A(1E) requires the Tribunal to confirm the decision to dismiss the application if the Applicant fails to apply for reinstatement within the 14 day period provided in s.426A(1B), and that is must do so by written statement under s.430 of the Act.

6. The decision record of 9 February 2018 and the statement of decision and reasons complies with the obligation on the Tribunal as set out in s.430 of the Act. I am satisfied that in the circumstances of this case the Tribunal’s decision to proceed under s.426A of the Act was not unreasonable. The Tribunal elected to exercise its power to proceed in the absence of the Applicant in circumstances where the Applicant had been properly invited to attend the Tribunal hearing. By virtue of the hearing invitation, the Applicant was on notice of the consequences should she fail to attend the hearing.

7. The Tribunal’s consequent confirmation decision does not disclose any jurisdictional error. 

Consideration of ground of review

1. As Mr Lambe has beneficially construed the ground: the Applicant contends that the dismissal was made without inquiring about whether the Applicant had changed her contact details, specifically her mobile number.  It may be beneficially construed that the Applicant asserts that the decision of the Tribunal to do so was procedurally unfair or legally unreasonable.  As Mr Lambe has submitted, and I accept, there is no requirement that the Tribunal request the Applicant to provide updated contact details.  It is for the Applicant to inform the Tribunal. 

2. The circumstances of this case are, in substance, analogous to those considered by the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 163 ALD 1 save that in the facts of SZVFW, the Tribunal did not attempt to additionally contact the Applicant by SMS, and in the present case the Tribunal has undertaken that additional step. The conclusion in SZVFW of Nettle and Gordon JJ at [123] applies with equal force to the Applicant’s circumstances. Mr Lambe also drew attention to the observations of Kiefel CJ at [16]:

   The primary judge's reasoning implies an obligation on the part of the Tribunal which would apply in most, if not all, cases where there had been no response to the invitation to attend.  No such obligation is to be found as expressed or to be implied in the statute.  The fact that the Tribunal could contact the respondents is but a factor which it could take into account in deciding whether to proceed to make its decision on the evidence before it.

3. I accept Mr Lambe’s further submission in respect of legal unreasonableness that this is not a case like Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. In that case the applicant had actively participated in the processes with the Department and before the delegate in contrast to the non-participation in the present case.

4. As to the additional matters raised by the Applicant before me today, the personal circumstances of the Applicant, as described now, including her inability to get a Medicare card, are not matters within this Court’s jurisdiction. 

5. To the extent that the Applicant seeks merits review of the decision of the Tribunal or of any earlier decision, the Court has no jurisdiction to undertake any merits review, and in those circumstances I dismiss the application. 

6. I say one extra matter, and that is the question of whether or not an extension of time was sought in relation to the dismissal decision.  This will be apparent in the above reasons.  Whilst Mr Lambe has made submissions as to the extension of time, should it be necessary, I have addressed the circumstances in the course of my consideration of the Tribunal’s dismissal decision and its confirmation in the confirmation decision.

7. I am not persuaded that the Applicant was out of time as the Applicant was certainly within time in seeking judicial review of the confirmation decision, and it is that decision which enlivens the possibility of review rights to this Court.  In any event, if there was any requirement for the Applicant to have made an application for an extension of time, which she has not done (albeit orally today she has indicated that she would be amenable to that course) as is apparent from the above reasons when considering the merits of the underlying substantive application, any such application would fail. 

8. The conclusion is that the application is dismissed, I so order and the Applicant is ordered to pay the First Respondent’s costs. 

Finally, I note that the Applicant made her request for publication of these reasons in April 2020, some 260 days after I delivered my reasons ex tempore.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 20 May 2020