BHP22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1137
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BHP22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1137
File number(s): MLG 760 of 2022 Judgment of: JUDGE J YOUNG Date of judgment: 4 December 2023 Catchwords: MIGRATION – application for review of Registrar’s decision – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – where applicant did not attend hearing before Tribunal – where applicant did not apply for reinstatement before Tribunal – where application for review of Registrar’s decision made out of time – found that grounds for judicial review have no reasonable prospects of success Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2)
Migration Act 1958 (Cth) ss 36(2)(a), (aa), 425, 425A, 426(1)(a), 426(1)(b), 426(1A)(b), 426A(1A)(b), 426A(1E), 426B, 441A(5), 441C(5)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 13.12, 13.13(a), 21.02(1), 21.02(2), 21.04
Migration Regulations 1994 (Cth) reg 4.35D
Cases cited: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641
AYT16 v Minister for Immigration and Border Protection [2017] FCA 252
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v The Commonwealth (2010) 241 CLR 118
SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 6 September 2023 Place: Melbourne Counsel for the Applicant: Self-represented litigant Counsel for the First Respondent: Ms Thompson of HWL Ebsworth Lawyers ORDERS
MLG 760 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BHP22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s Application for Review of a Registrar’s decision filed 1 September 2023 be dismissed.
2.The applicant pay the First Respondent’s costs in an amount to be fixed if not agreed.
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
JUDGE J YOUNG:
INTRODUCTION
This is an Application for Review of a Registrar’s Decision made on 4 April 2023.
The Application before the Registrar was an Application by the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), for summary dismissal of the applicant’s Application for judicial review filed 8 April 2022.
The Registrar made orders for the applicant’s Application 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 (Rules) and that the applicant pay the first respondent’s costs fixed in the amount of $4,189.38.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, the Minister’s Application for summary dismissal is to be considered afresh.
BACKGROUND
The applicant is a citizen of the Republic of China (Taiwan) who arrived in Australia on 6 December 2014.
Application for protection visa on 29 November 2016
On 29 November 2016 the applicant applied for a Protection (subclass 866) visa (Visa) on the basis that she claimed to fear harm from debt collector “gangsters” due to outstanding debts she owed a friend. The applicant’s Visa application provides the further following reasons as to why she left Taiwan:
(a)to avoid being harmed and persecuted by debt collectors;
(b)if the applicant returns to Taiwan she will be stalked and hurt by gangsters;
(c)she borrowed money from a friend to gamble and when she failed to pay back the money, her friend sent gang members to follow and threaten the applicant and the gang members destroyed all her property;
(d)the interest of her debt has grown and as such she is unable to repay the debt;
(e)she tried to seek help from the police and was not given any assistance;
(f)she could not relocate elsewhere in Taiwan because the gangsters will track her down.
This was the extent of the information provided by the applicant in support of her protection visa application; no further evidence was put forward by or on behalf of the applicant.
Refusal of protection visa on 19 July 2017
On 19 July 2017, a delegate of the Minister (delegate) refused the applicant’s application for a protection visa as they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
A copy of the delegate’s decision, as well as information about the applicant’s rights of review, was sent to the applicant by her nominated email address on 19 July 2017.
Application for review at Tribunal on 7 August 2017
On 7 August 2017, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. In the application for review, the applicant nominated the email address <[email protected]> (applicant’s email address) for correspondence and did not provide a mobile number.
In correspondence from the Tribunal dated 9 August 2017 confirming receipt of her application, the applicant was advised if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible. The applicant was also advised of the need to keep the Tribunal updated with regard to her contact details.
On 22 September 2021 the Tribunal emailed the applicant requesting she provide her phone number within 7 days. On 27 September 2021 the applicant provided the Tribunal with the mobile number “xxxxx xxx52” for correspondence.
On 1 December 2021 the Tribunal emailed the applicant enclosing an invitation for her to attend a hearing on 14 January 2022. On 10 January 2022 the Tribunal emailed the applicant advising her that the hearing before the Tribunal had been postponed.
On 9 February 2022 the Tribunal emailed the applicant enclosing an invitation for her to attend a rescheduled hearing on 16 March 2022 at 10.00am with an information sheet attached. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant did not respond to the hearing invitation.
The Tribunal sent SMS reminders of the hearing to the applicant on 8 March 2022 and 15 March 2022.
The applicant did not attend the hearing on 16 March 2022. Pursuant to s 426A(1A)(b) of the Act, the Tribunal dismissed the application for non-appearance (dismissal decision).
Tribunal’s decision
On 18 March 2022 the Tribunal sent a copy of the decision record to the applicant’s email address. The notification letter sent with the dismissal decision (notification letter) informed the applicant that reinstatement of the application could be sought by 1 April 2002. The applicant was also provided with an information sheet entitled “information about dismissal of applications” which informed the applicant that she was able to apply for reinstatement within 14 days. The fact sheet also stated that if reinstatement was not sought within 14 days the Tribunal must confirm the decision to dismiss the application.
The applicant did not apply for reinstatement of the application and did not contact the Tribunal after being notified of the non-appearance decision.
On 5 April 2022 the Tribunal confirmed its original decision to dismiss the application (confirmation decision).
Dismissal decision
The Tribunal found that the applicant was invited pursuant to s 425 of the Act to appear before it on 16 March 2022 at 10.00am but did not appear at the scheduled time and place. The Tribunal found that the applicant was properly invited to a hearing in accordance with s 441A(5) and that two SMS hearing reminders were sent to the applicant prior to the hearing. The Tribunal found that no reason for the non-appearance was given. The Tribunal dismissed the application without further consideration of the application or the information before it.
Confirmation decision
On 5 April 2022, the Tribunal found that the applicant had been notified of the dismissal decision and had been given a copy of the written statement and reasons in accordance with s 426B(5) of the Act. The applicant had been advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. The Tribunal found that as the applicant did not apply for reinstatement within the 14 day period it must confirm the decision to dismiss the application.
PROCEEDINGS IN THIS COURT
On 8 April 2022, the applicant filed judicial review of the Tribunal’s confirmation decision in this Court, but not the dismissal decision. In that Application, the applicant sought orders quashing the Tribunal’s decision and an order directing the Tribunal to determine the applicant’s application according to law. Additionally, the applicant sought the following further orders (without amendment):
1.Prohibition directed to the First Respondent prohibiting from acting upon or giving effect to or proceeding further upon the decision of the Tribunal.
2.Costs.
3.Such further order or other relief as the Court deems fit.
In the Response filed 27 June 2022, the Minister sought orders that the Application be dismissed.
At the callover hearing on 2 February 2023, Orders were made listing the matter for a summary dismissal hearing. The requirement of rule 13.12 was dispensed with, meaning that the Minister was not required to file an Application for summary dismissal.
Summary dismissal hearing on 4 April 2023
As stated, the summary dismissal Application was heard and determined by the Registrar on 4 April 2023, with the Registrar summarily dismissing the Application for judicial review of the Tribunal’s decision.
Application for review of a Registrar’s decision filed on 1 September 2023
As already set out, the Application presently before the Court is an Application for a review of the Registrar’s decision, which was filed by the applicant on 1 September 2023, and that Application is to be conducted as a hearing de novo.
The Minister relies upon its written submissions filed on 21 March 2023.
At the hearing before me the applicant appeared on her own behalf with the assistance of an interpreter in the Mandarin and English languages.
Late filing of application for review of a Registrar’s decision
Before turning to the summary dismissal Application, the preliminary issue of the late filing of the Application for review of the Registrar’s decision needs to be addressed.
Rule 21.02(1) of the Rules provides that an Application for review of a Registrar’s decision must be made within 7 days. Rule 21.02(2) provides that time may be extended in a proceeding by the Court “on any terms that the Court … thinks fit”.
The Registrar’s decision was made on 4 April 2023. An application for review of that decision in this Court was therefore required to be made no later than 11 April 2023. The Application for Review of the Registrar’s decision was not made until 1 September 2023.
Accordingly, the Application was made 143 days after the expiry of the statutory timeframe.
The Minister opposed any extension of time in this matter. The applicant did not provide any explanation for the late filing other than to say she was not paying attention.
Despite the absence of any acceptable explanation for the late filing of the Application, I am satisfied in this instance that it is appropriate for the time for filing the review Application to be extended. This is in circumstances where the applicant is self-represented, appeared to be confused by the Court processes, has limited English skills and there is no particular prejudice to the Minister (other than as to costs) if time were to be extended.
Summary Dismissal Principles
In considering an Application for summary dismissal either under rule 13.13(a) of the Rules or under s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v The Commonwealth (2010) 241 CLR 118 (Spencer); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski). It is not necessary for the Court to be satisfied that the applicant is bound to fail.
The discretion to summarily dismiss an Application must be exercised with caution given it is an Order made at a preliminary stage in proceedings in the absence of a full and complete factual matrix and argument: Spencer; Przybylowski. However, what is required is “a critical examination of the available material to determine whether there is a real question of law of fact which should be decided at trial”: Spencer; Przybylowski; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46]. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.
GROUNDS OF REVIEW
In her substantive Application for judicial review, the applicant raises the following grounds (without amendment):
1.The Tribunal failed to make a finding to my merit application in respect of protection visa.
2.The Tribunal failed to consider my application of protection visa on the evidence before it.
3.The Tribunal erred in dismissing my application without exercising its obligation.
At the hearing of this matter, the applicant was invited to elaborate on her grounds for review but provided no further matters for the Court’s consideration nor any further articulation of the grounds of review. For completeness, when asked in reference to ground 3 which obligation the Tribunal had not exercised, the applicant could not provide any further articulation of this.
For the following reasons I am satisfied that the grounds of the substantive Application for judicial review have no reasonable prospects of success.
Grounds 1 and 2
Grounds 1 and 2 are misconceived. It is convenient to address these grounds together.
Under s 426A of the Act, when an applicant is properly invited to attend a hearing but fails to do so, s 426A(1A)(b) empowers the Tribunal to dismiss the application without further consideration of the application or information before it. The Tribunal’s power in s 426A can only be exercised if the requirements set out in s 426A(1) are satisfied: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [63].
As to s 426A(1)(a), the applicant was invited to a hearing before the Tribunal under s 425 of the Act. That invitation:
(a)contained an invitation to the applicant to appear before it to give evidence as required by s 425(1) and s 426(1)(a) of the Act;
(b)notified the applicant that she could give the Tribunal written notice to obtain oral evidence from a person or person as required by s 426(1)(b);
(c)notified the applicant of the specified day, time and place of the hearing as required by s 425A(1);
(d)was given to the applicant by one of the methods specified in s 441A of the Act namely, the applicant’s email address, which was an approved method for the Tribunal to give the document to the applicant as was required by s 425A(2)(a);
(e)complied with s 441A(5) by transmitting the document by email to the last email address provided to the Tribunal by the recipient in connection with the review;
(f)was taken to have been received by the applicant at the end of the day on which the document was transmitted in accordance with s 441C(5) (i.e., on 9 February 2022)
(g)complied with s 425A(3) by providing the applicant with a period of notice of the hearing that was at least the prescribed period of 14 days (as specified by reg 4.35D of the Migration Regulations 1994 (Cth); and
(h)complied with s 425A(4) by containing a statement of the effect of s 426A about options available to the Tribunal if the applicant failed to appear before it.
It therefore complied with s 425A of the Act.
As the applicant was validly invited to a Tribunal hearing, the Tribunal was entitled to dismiss the Application by reason of the applicant’s failure to attend the hearing: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 at [5]. The Tribunal was therefore not required to consider the applicant’s review application or make its own findings on the materials before it.
It is uncontentious that the power under s 426(1A)(b) must be exercised reasonably. The Tribunal’s exercise of power in the present case was reasonable because the applicant had been properly notified of the hearing, including by two SMS reminders close to the hearing date, informed as to the consequence of failing to attend and had not engaged with the Tribunal other than to lodge the initial application for review and provide the Tribunal with her telephone number. Additionally, the Tribunal’s hearing record indicates that the Tribunal waited 15 minutes after the scheduled start time before determining the applicant had not appeared and no reason for non-appearance was given nor a request for an adjournment was made.
The Tribunal’s letter of 18 March 2022, notifying the applicant of the non-appearance decision and inviting her to apply for reinstatement, complied with the requirements of s 426B as it:
(a)enclosed a written statement of decision which complied with the requirements of subsections 426B(2)(a) to (d);
(b)was given to the applicant within 14 days of the date of the decision (s 426B(5)(a));
(c)was sent to the applicant by one of the methods specified in s 441A (namely, by email) as required by s 426B(5)(b); and
(d)informed the applicant (in an attached information sheet) that she had 14 days in which to apply for reinstatement of the matter and, if she failed to apply for reinstatement within 14 days, the decision to dismiss the application must be confirmed (s 426B(6)).
I make this finding notwithstanding the incorrect reference to 1 April 2002 contained in the notification letter. Although the notification letter incorrectly referenced 2002, rather than 2022, the applicant was given clear information in the fact sheet attached to the notification letter that she had 14 days to apply for reinstatement and the consequences if she failed to do so.
As set out earlier, the applicant did not apply for reinstatement of the application within 14 days. Therefore, the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10].
For these reason grounds 1 and 2 have no reasonable prospect of success.
Ground 3
As to ground 3, firstly, this ground is completely unparticularised and no further elaboration or particularisation was provided by the applicant at the hearing. The obligation which the applicant asserts the Tribunal failed to exercise is entirely unclear. This alone is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24].
However, if it be that by this ground that the applicant seeks to assert that the Tribunal dismissed the Application without having regard to its procedural fairness obligations, for the following reasons I also find this ground to have no reasonable prospects of success.
The Tribunal proceedings were conducted under Part 7 of the Act. Division 4 of Part 7 exhaustively codifies or confines the Tribunal’s procedural fairness obligations in this regard.
As set out above:
(a)the applicant was validly invited to attend a hearing before the Tribunal in accordance with ss 425 and 425A;
(b)under s 426A of the Act, when an applicant is properly invited to attend a hearing but fails to do so, s 426A(1A)(b) empowers the Tribunal to dismiss the application without further consideration of the application or information before it;
(c)the Tribunal exercised it power under s 426A(1A)(b) reasonably;
(d)the applicant was properly notified of the dismissal decision and, notwithstanding the error in the notification letter, the ability to seek reinstatement of the application in accordance with s 426B;
(e)the applicant did not apply for reinstatement of the application within 14 days; and
(f)pursuant to s426A(1E) of the Act the Tribunal was required to confirm the dismissal decision.
Accordingly, the Tribunal complied with the requirements of Division 4 of Part 7 of the Act. There was no failure to accord procedural fairness to the applicant.
Ground 3 also has no reasonable prospects of success.
CONCLUSION
For the above reasons I find that the applicant’s substantive Application has no reasonable prospects of success.
The Minister seeks costs. I shall order that the applicant pay the Minister’s costs in a sum to be fixed if not agreed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 4 December 2023
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