BHQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 631

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 631

File number:	PEG 90 of 2020
Judgment of:	JUDGE STREET
Date of judgment:	30 March 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application in a case for reinstatement – where applicant failed to appear at hearing before the Tribunal and failed to apply for reinstatement within 14 days – whether the Tribunal failed to take into account relevant considerations – whether the applicant was provided an opportunity to present evidence and arguments – whether the Tribunal’s decision was affected by bias – no jurisdictional error made out – no utility in reinstating the proceedings – application in a case dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5AAA, 426A
Number of paragraphs:	25
Date of hearing:	30 March 2021
Place:	Sydney
Applicant:	In person
Solicitor for the First Respondent:	Ms G Ellis, Sparke Helmore

ORDERS

PEG 90 of 2020

BETWEEN:

BHQ20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	30 MARCH 2021

THE COURT ORDERS THAT:

1.The application in a case dated 22 March 2021 is dismissed.

2.The applicant pay the first respondent’s further costs in the amount of $500.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application in a case to reinstate proceedings that were dismissed for want of appearance by the applicant. The substantive proceedings are one in which the applicant seeks a Constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 March 2020 affirming a dismissal of the applicant’s application for review. 

2. The Tribunal made reference to the dismissal of the applicant’s application when he failed to appear on 28 February 2020 and the application was dismissed by the Tribunal under s 426A(1A)(b) of the Migration Act 1958 (Cth) (“the Act”). 

3. It is apparent from the dismissal decision of 28 February 2020 that the Tribunal found that the applicant had been properly invited to attend the hearing within s 441A(5) of the Act. It is apparent that the invitation to the applicant was sent to the email address identified on the application for review filed on 22 May 2017. The Tribunal also identified in the dismissal decision that the applicant had been sent SMS reminders about the hearing. 

4. The applicant is a citizen of China and arrived in Australia in November 2015 as the holder of a working holiday visa. The applicant departed Australia and returned to China in April 2016. The applicant returned to Australia in June 2016 and became an unlawful non-citizen on 24 November 2016. It was not until 25 February 2017 that the applicant was located and he then made an application for protection on 10 March 2017. 

5. The applicant claimed to fear harm because he and his friend reported a corrupt tax officer to Chinese authorities.    

6. The applicant failed to attend the interview before the delegate of the first respondent “the Delegate”) and the Delegate found that the applicant failed to meet the criteria for a Protection visa. 

7. In the confirmation of the dismissal decision, the Tribunal found the applicant was properly notified of the dismissal decision in accordance with s 426B(5) of the Act and that the applicant failed to make an application for reinstatement within the 14 day period. 

   BEFORE THE COURT

8. These proceedings were commenced on 24 March 2020 and on 30 April 2020, orders were made by a Registrar of the Court giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.

9. The applicant made an earlier application for reinstatement of the proceedings when they were dismissed as a result of a communication from the Court to the wrong email address. The applicant was notified of a further hearing date on 19 February 2021, sent to the applicant’s correct email address. When the applicant failed to appear on that occasion, a Judge of the Court dismissed the proceedings under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

   BEFORE THE COURT

10. At the commencement of the hearing today, the Court explained to the applicant the nature of the reinstatement hearing and the applicant confirmed that he understood what was said by the Court.

11. The applicant maintained that he had not received the notification of the hearing. In light of the evidence before the Court, notifying the applicant at his email address with the same email address he was using before the Tribunal, the Court does not regard the applicant’s explanation for his failure to appear as satisfactory. 

12. The applicant contended that the Tribunal had not taken his application for a Protection visa seriously. That is an odd submission for the applicant to make when he failed to appear before the Delegate and failed to appear before the Tribunal and failed to seek reinstatement.

13. Under s 5AAA of the Act, it was for the applicant to provide sufficient evidence to establish his claims. The applicant’s failure to appear before the Delegate meant there was little information before the Delegate upon which the Delegate could make a favourable decision for the applicant. 

14. In relation to the review application, where the applicant had been properly notified of the hearing date, it was open to the Tribunal to dismiss the application. The Tribunal’s decision to dismiss the proceedings under s 426A(1a)(b) of the Act cannot be said to be legally unreasonable. That is because the Tribunal found that the applicant had been notified of the hearing date directly and had been sent SMS reminders. In circumstances where the Tribunal found the applicant had been properly notified of that dismissal decision, the Tribunal had no alternative but to dismiss the application when no reinstatement application was made within 14 days.

15. Nothing said by the applicant identified any arguable case of relevant error by the Tribunal. 

    THE GROUNDS

16. The grounds in the application are as follows:

    (1)The first respondent and the second respondent do not take all the facts into consideration to assess the protection visa.

    (2)The first and second respondents have not considered the consequence to the applicant to return to his own country.

    (3)The first respondent did not give the opportunity to the applicant for further information and documents request.

    (4)The second respondent did not consider the documents provided previously in the first respondent.

    (5)The first respondent has bias against the applicant

    Grounds 1, 2 and 4

17. The first respondent is correct that in circumstances where the applicant failed to attend the hearing and failed to seek reinstatement, the Tribunal was not required to engage with the merits in respect of grounds 1, 2 and 4. 

18. No arguable case of relevant error is disclosed by grounds 1, 2 and 4. 

    Ground 3

19. In relation to ground 3, it is apparent the applicant was invited to attend a hearing before the Tribunal in accordance with the statutory regime. It was the applicant who failed to attend, despite also being sent SMS reminders. The applicant was given a real opportunity to present evidence and arguments and failed to do so. 

20. No arguable case of relevant error is disclosed by ground 3.

    Ground 5

21. In relation to ground 5, no conduct has been identified to support the allegation of bias. On that ground alone no arguable case is disclosed by ground 5. 

22. Further, there is nothing before the Court to support a contention that the Tribunal did other than approach the review with an open mind reasonably capable of persuasion as to the merits.  The adverse finding in respect of the Tribunal, dismissal and confirmation of the dismissal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. 

23. No arguable case of relevant error is disclosed by ground 5.

24. In these circumstances, the Court is satisfied that there would be no utility in reinstating the proceedings. 

25. The Court has found that the applicant has not provided a satisfactory explanation for his failure to appear, and that there is no arguable case of relevant error. Accordingly, there is no utility in reinstating the proceedings and the application in a case is dismissed. 

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 30 March 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       10 June 2021