BCJ21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 464
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BCJ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 464
File number(s): SYG 729 of 2021 Judgment of: JUDICIAL REGISTRAR CUMMINGS Date of judgment: 1 June 2023 Catchwords: MIGRATION – judicial review – application for summary dismissal of application for judicial review – where Tribunal dismissed review application after applicant failed to appear at hearing – where Tribunal confirmed dismissal decision after applicant failed to apply for reinstatement within prescribed period – whether Tribunal exercised its powers reasonably. Legislation: Migration Act 1958 (Cth), ss 425, 425A, 425A(1), 425A(2)(a) 425A(3), 425A(4), 426A(1A)(b), 426A(1B), 426A(1E), 426A(1F), 426B(2), 426B(5)(a), 426B(5)(b), 426B(6), 441A(5)
Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021, r 13.13(a), sch 2 pt 1 div 1
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744, followed.
AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44, followed.
AYT16 v Minister for Immigration and Border Protection [2017] FCA 252, applied.
CZM17 v Minister for Immigration & Another [2018] FCCA 158, followed.
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, applied.
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, applied.
SZTHQ v Minister for Immigration and Border Protection [2014] FCA 1231, applied.
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submissions: 15 May 2023 Date of hearing: 1 June 2023 Place: Adelaide The Applicant: In person via telephone with a Mandarin interpreter Solicitor for the First Respondent: Ms A Meaney of Mills Oakley via Microsoft Teams ORDERS
SYG 729 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BCJ21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MIGRANT SERVICES
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDICIAL REGISTRAR CUMMINGS
DATE OF ORDER:
1 JUNE 2023
THE COURT ORDERS THAT:
1.The application for judicial review filed 28 April 2021 be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The applicant pay the first respondent’s costs fixed in the amount of $4,189.38.
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
JUDICIAL REGISTRAR CUMMINGS
On 28 April 2021, the applicant applied to this Court for judicial review of decisions made by the second respondent (the Tribunal) on 22 March 2021 and 12 April 2021.
The first respondent (the Minister) contends that the applicant’s application should be summarily dismissed because it has no reasonable prospects of success.
At the conclusion of the hearing of the Minister’s summary dismissal application, I was satisfied that the applicant has no reasonable prospects of successfully prosecuting his judicial review application. In those circumstances, I ordered that the application was to be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules). These are my reasons for making that order.
BACKGROUND
On 7 April 2017, a delegate of the Minister refused the applicant’s protection visa application. On 2 May 2017, the applicant applied to the Tribunal for review of the delegate’s decision. He provided a contact email address and PO Box but no phone number. On 25 February 2021, the Tribunal invited the applicant to attend a hearing in person on 22 March 2021 at 9:30am. The invitation was sent to the contact email address listed in the applicant’s review application (CB 84). The invitation relevantly stated the following (CB 87):
Other things to note
If you are not able to participate in this hearing, you need to advise us as soon as possible. Please note that we will only make changes if satisfied that you have a good reason for being granted an adjournment. The Presiding Member will consider any submissions you make about why it is not suitable or possible for your hearing to proceed and you will be advised of the outcome of that consideration before the hearing. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not participate in 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.
The hearing invitation was accompanied by a brochure that relevantly stated the following (CB 91):
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. 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.
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
The applicant did not attend the hearing on 22 March 2021 (CB 93). A file note from the Tribunal’s records suggests that “checks of the floor were done at 9:20am, 9:30am & 10:00am” to no avail (CB 96). Later that day, the Tribunal dismissed the applicant’s review application pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the Act) (CB 100) (the dismissal decision). This is the first of the two decisions that is the subject of the applicant’s judicial review application. The Tribunal’s decision record for the dismissal decision provides as follows:
The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 22 March 2021 at 9.30am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. No phone number was provided in the Application for Review to send an SMS message about the hearing prior to it.
The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. The applicant did not present at the counter at the scheduled hearing time. Checks of the floor were done at 9:20am, 9:30am and 10:00am on 22 March 2021 and the applicant was not present.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) and the invitation has not been returned to sender. No satisfactory reason for the non-appearance has been given.
In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Tribunal notified the applicant of the dismissal decision by email sent on the day that decision was made (CB 97). The cover letter accompanying the dismissal decision relevantly stated the following (CB 98):
You may apply to us, in writing, for reinstatement of the application by 6 April 2021. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
The applicant did not apply for reinstatement of his review application by 6 April 2021 (CB 105, [4]). On 12 April 2021, the Tribunal exercised the power in s 426A(1E) by confirming the dismissal decision (confirmation decision) (CB 105). That is the second of the decisions that is the subject of the applicant’s judicial review application. The Tribunal’s decision record for the confirmation decision relevantly states the following:
As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
PROCEEDINGS IN THIS COURT
The applicant has applied for judicial review of the confirmation decision but not the dismissal decision. The grounds contained in his application are as follows (original reproduced):
1.My case was not properly considered according to law.
2.I didn’t have the procedure fairness for my review application especially for the current pandemic situation.
3.AAT should give me another chance and didn’t consider that I was sik and couldn’t attend the interview.
4.I hope I can be given another chance and arranged to have another interview date for my review at the AAT.
The matter came before me for hearing of the Minister’s summary dismissal application on 1 June 2023. These were the documents I read in determining that application:
(1)The applicant’s application for judicial review filed on 28 April 2021;
(2)The applicant’s affidavit filed on 28 April 2021 (which annexed the Tribunal’s decisions);
(3)The court book filed by the Minister on 24 May 2021;
(4)The Minister’s response filed on 18 May 2021; and
(5)The Minister’s submission filed on 15 May 2023.
I admitted the documents referred to above at (2) and (3) into evidence at the hearing of the summary dismissal application.
I approached the matter on the basis that it was for the Minister, as the moving party in respect of the summary dismissal application, to satisfy me that the applicant’s application for judicial review has no reasonable prospects of success (AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 at [37] per Deputy Chief Judge Mercuri).
Noting that the applicant was unrepresented, I gave the applicant an explanation as to the nature of the Court’s role in undertaking judicial review and the common categories of jurisdictional error. I also explained that I had no power to grant the applicant a visa, or to engage in a merits review of the Tribunal’s decision.
In circumstances where the Minister was the moving party in respect of the summary dismissal application, I invited his solicitor to make submissions as to why I should be satisfied that the applicant’s substantive application has no reasonable prospects of success. The Minister’s oral submissions were to the same effect as those made in his written submissions. In short, the Minister contended that it was open to the Tribunal to decision to dismiss the applicant’s review application after they failed to appear at the hearing, and the applicant’s subsequent failure to apply for reinstatement of the review application meant that the Tribunal was obliged by law to confirm the dismissal decision.
I then invited the applicant to make oral submissions. He was succinct. He said that the Tribunal did not make any legal error. I was satisfied that the applicant understood the consequences of such a conclusion for the outcome of his Court proceedings.
It will be apparent that the grounds in the applicant’s application do not clearly explain the nature of the jurisdictional errors that the applicant alleges were committed by the Tribunal. The applicant’s oral submissions also did not contain any arguable allegation of jurisdictional error. In those circumstances, in addition to addressing the applicant’s grounds and oral submissions, I engaged in an independent assessment of the evidence before me with a view to establishing whether it is arguable that the either of the Tribunal’s decisions were vitiated by jurisdictional error. It is convenient to frame my analysis by reference to these questions:
(1)Did the Tribunal have power to make the dismissal decision?
(2)Did the Tribunal act reasonably in making the dismissal decision?
(3)Did the Tribunal have power to make the confirmation decision?
(4)Did the Tribunal act reasonably in making the confirmation decision?
Did the Tribunal have power to make the dismissal decision?
Section 426A(1)-(1A) of the Act provide as follows:
(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.
The dismissal power in s 426A(1)(A)(b) is conditioned upon the relevant applicant having been validly invited under s 425 to appear before the Tribunal (ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744 at [50]). For the reasons that follow, I am satisfied that the hearing invitation extended to the applicant in the matter at hand complied with the requirements imposed by ss 425 and s 425A of the Act:
(1)The invitation indicated the date, time and means by which the applicant could attend the hearing, as is required by s 425A(1) (CB 85).
(2)The invitation was addressed to the applicant and was conveyed to him by email to the contact email address he provided in his Tribunal review application, email being an approved communication method for the purposes of ss 425A(2)(a) and 441A(5) (CB 84-85).
(3)The invitation was given to the applicant on 25 February 2022, which constituted a notice period for the hearing that exceeded the minimum prescribed by s 425A(3) and reg 4.35D of the Migration Regulations 1994 (Cth) (CB 84).
(4)The invitation contained a statement explaining what would happen if the applicant did not attend the hearing, as is required by s 425A(4) of the Act (CB 87, 91).
In light of the forgoing, and the apparently uncontroversial fact that the applicant did not attend at the hearing before the Tribunal, I am satisfied that the dismissal power in s 426A(1A)(b) was enlivened in the matter at hand. I do not consider that the contrary position is reasonably arguable. It follows that I do not accept the applicant’s contentions in ground one and two that the process leading up to the making of the dismissal decision was not procedurally fair or was otherwise contrary to law.
Did the Tribunal act reasonably in making the dismissal decision?
The dismissal power in s 426A(1A)(b) must be exercised reasonably (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4]; (2018) 264 CLR 541 at 549). I am satisfied that the exercise of the power in the matter at hand was reasonable, and I do not accept that the applicant has reasonable prospects of establishing the contrary position. I am of that view because the reasons the Tribunal gave as to why it exercised the power in the way that it did comprise an intelligible justification for the exercise of the power (Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [58]); (2014) 231 FCR 437 at 446-447). The gist of those reasons was as follows:
(1)Despite being properly invited to the hearing, and informed of the consequences of not attending at same, the applicant did not appear at the hearing. No satisfactory explanation had been given by the applicant for his non-appearance.
(2)The Tribunal was unable to contact the applicant by telephone to enquire about his whereabouts as the applicant did not provide a contact telephone number.
By grounds two and three, the applicant appears to be contending that in determining whether to make the dismissal decision the Tribunal should have brought to account “the current pandemic situation” and the fact that the applicant was “sik and couldn’t attend the interview”. For the reasons that follow, I am not satisfied that it is reasonably arguable that the dismissal decision was vitiated by jurisdictional error by reason of the Tribunal’s failure to bring either or both of those matters to account:
(1)There is no evidence to suggest that the applicant ever told the Tribunal that he was prevented from attending the hearing by reason of illness, nor was there any evidence before the Tribunal that should have put it on inquiry in relation to that issue.
(2)The Tribunal’s hearing invitation provided detailed information in relation to the steps the Tribunal was taking to “ensure hearings are conducted in a COVID-safe environment” (CB 86), yet there is no evidence to suggest that the applicant ever expressed any concerns to the Tribunal about the appropriateness of him attending a hearing in person in light of the then prevailing COVID-19 situation. I do not consider that there was any basis for the Tribunal to have proceeded on the basis that the applicant’s failure to appear at the hearing was caused by COVID-19 related concerns.
Did the Tribunal have power to make the confirmation decision?
Sections 426A(1B) and 426A(1E) provide as follows:
(1B) If the Tribunal dismisses the application [pursuant to s 426A(1A)(b)], 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.
…
(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.
I am satisfied that the applicant was notified of the dismissal decision for the purposes of s 426B on the date the decision was emailed to him, namely, 22 March 2021 (CB 97). On that day, the applicant was given a written statement of decision that complied with the requirements of s 426B(2) (CB 100). That statement was conveyed to the applicant through email, a method specified in s 441A, as required by s 426B(5)(b), and within the 14-day period prescribed by s 426B(5)(a) (CB 97). The applicant was also given a statement describing the effect of ss 426A(1B) to (1F), as required by s 426B(6) (CB 101).
The 14-day period referred to in s 426A(1B) therefore expired 6 April 2021. It follows from the mandatory terms of s 426A(1E) that the decision the Tribunal made on 12 April 2021, namely, the confirmation decision, was the only decision the Tribunal could validly make in light of the applicant’s failure to apply in writing for reinstatement of his application (AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10]).
Did the Tribunal act reasonably in making the confirmation decision?
The fact that the Tribunal was “obliged by law” (AYT16 at [10]) to make the confirmation decision necessarily means that the Tribunal’s decision to proceed in that way was not legally unreasonable. The mandatory nature of s 426A(1E) also means that none of grounds one through three comprise a reasonably arguable allegation of jurisdictional error in respect of the confirmation decision. Ground four does not allege any error on behalf of the Tribunal and hence it has no reasonable prospects of success.
CONCLUSION
In light of the forgoing, I am satisfied that the applicant does not have reasonable prospects of establishing that either of the Tribunal’s decisions are vitiated by jurisdictional error. In those circumstances, it is appropriate for the application to be summarily dismissed pursuant to r 13.13(a) of the Rules.
The Minister sought an order requiring the applicant to pay the Minister’s costs fixed in the amount of $4,189.38. I was satisfied that costs should follow the event. The amount sought by the Minister reflects the Court’s scale as set out in Division 1 of Part 2 of Schedule 2 of the Rules, and I therefore considered that the claimed amount was appropriate.
I certify that the preceding 27 (twenty-seven) numbered paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar Cummings. Legal Case Manager:
Dated: 1 June 2023
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