BHQ20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 298
•22 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BHQ20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 298
File number(s): PEG 90 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 22 February 2021 Catchwords: MIGRATION – application in a case seeking reinstatement – Protection visa – decision of the Administrative Appeals Tribunal – factors for consideration – application in a case dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth), rr 13.03C, 16.05
Migration Act 1958 (Cth), ss 425A, 426A, 476
Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
Craig v State of South Australia (1995) 184 CLR 163
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 80 Date of hearing: 19 February 2021 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 90 of 2020 BETWEEN: BHQ20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
19 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The hearing of the matter proceed pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
2.The application in a case filed 23 October 2020 be dismissed.
3.Written reasons for judgment be published from Chambers at a later date.
4.The applicant pay the first respondent’s cost fixed in the sum of $500.
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
On 19 February 2021, this matter was listed for an interlocutory hearing. The applicant failed to attend at the date and time specified. The Court was satisfied that the applicant was properly advised of the date and time of the hearing. As such, the Court made the following orders:
1. The hearing of the matter proceed pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
2. The application in a case filed 23 October 2020 be dismissed.
3. Written reasons for judgment be published from Chambers at a later date.
4. The applicant pay the first respondent’s cost fixed in the sum of $500.
These reasons are those referred to in order 3 above. They explain why the Court proceeded in the absence of the applicant and dismissed the application in a case.
BACKGROUND
The applicant is a citizen of China. He arrived in Australia on a Working Holiday Visa on 14 June 2016 (Court Book (“CB”) 20). That visa expired on 24 November 2016 and the applicant was subsequently detained as an unlawful non-citizen on 25 February 2017 (CB 57).
On 10 March 2017, the applicant applied for a Protection (subclass 866) visa (the “visa”) (CB 1-42). The applicant’s claims for protection (contained in a statement) provided:
When I was in China, I was so scared to be paid back from the corruption officers in the local government. It went back two years ago, my friend reported the corruption office from the taxation office in my city, my friend had a big argument with his leader in the workplace and he found out the officer from taxation was corrupted and protect his boss from avoiding to pay the proper tax, my friend and I reported this officer to the Authority together.
Several weeks after this, my friend was taken to the local police office for interview, he was locked there for 24 hours, and they told my friend that, I would be the next one, in the 24 hours, my friends has nothing to eat, nothing to drink and they stopped him to go to toilet. I was very scared and I left my hometown. In the next four or five months, I lived in the fear, my family did not understand me, they blamed me to get trouble for helping my friend, it should not be our business. My friend helped me to find the visa agent to get the working holiday visa; I left the country very soon.
After I arrived in Australia, I still very scared to tell this to anyone, I am scared if someone knows about what had happened, they will report to China government. In order to find a place of peace, I went to Church to seek the protection. I felt very peaceful when I was in the Church, however, it only just several times, I was found that unlawfully stayed in Australia, I asked help from my friend and I told them what had happened, they think I should apply the protection visa, because the risk is really existed and the fear is well.
The applicant attended an interview before a delegate of the first respondent (the “Minister”) on 27 April 2017 (CB 51-52).
On 28 April 2017, the delegate refused to grant the applicant the visa (CB 53-64). The delegate was not satisfied that the applicant faced a real chance or a real risk of serious or significant harm if he returned to China.
On 22 May 2017, the applicant sought review of the delegate’s decision in the Administrative Appeals Tribunal (the “Tribunal”) (CB 65-66).
The applicant was invited to attend a hearing before the Tribunal scheduled for 28 February 2020 (CB 71-73).
The applicant failed to attend that hearing (CB 74-76). The Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) (the “Dismissal Decision”) (CB 80).
On 16 March 2020, the Tribunal confirmed the Dismissal Decision (the “Confirmation Decision”) (CB 85-86).
Both Tribunal decisions are provided in full below at [38]-[39].
PROCEEDINGS IN THIS COURT
On 24 March 2020, the applicant applied to this Court for judicial review of the Tribunal’s decisions. The application was brought pursuant to s 476 of the Act.
On 30 April 2020, a Registrar of this Court made orders programming the matter and listing it for a hearing on 14 October 2020. Correspondence was sent to the applicant on 7 October 2020 and 13 October 2020 confirming the date and time of the hearing.
The applicant did not attend the hearing on 14 October 2020.
The Court made the following orders:
1. The application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
2. The applicant pay the first respondent’s costs fixed in the sum of $5,000.
On 23 October 2020, the applicant filed an application in a case seeking reinstatement. That application seeks:
1. An order that made by Judge Kendall on 14 October 2020, the decision of the tribunal, Immigration Assessment Authority or Minister be quashed.
2. A writ of mandamus directed to the Federal Circuit Court, the tribunal, Immigration Assessment Authority or Minister, requiring them to determine the applicant’s application according to law.
The Court has proceeded on the basis that the applicant is seeking an order pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) that the orders dated 14 October 2020 be set aside.
The applicant also filed an affidavit in support of his application in a case, affirmed 22 October 2020, which provides:
1. I am the applicant of these proceedings.
2. I attach a copy of the Decision from Department of Home Affairs.
3. I attach a copy of the Administrative Appeals Tribunal.
4. I have been very sick; I missed the hearing date.
5. I sincerely request the court can reinstate my case.
6. I provide my medical certificate which was issued on the hearing date.
7. In the meantime, I ask the Court genuinely to accept the true evidences I provided herewith.
The application in a case was listed for hearing before this Court on 17 February 2021. On that occasion, the applicant did not appear. The Court had concerns about whether the applicant was properly aware of the hearing date and time. Accordingly, the Court made orders adjourning the matter to 19 February 2021. Chambers emailed the parties advising that the hearing of the application in a case would proceed on 19 February 2021. That email was sent at 12.01pm on 17 February 2021 to the applicant’s nominated email address. The Court marked that correspondence as Exhibit 1.
On 19 February 2021, the matter was called on. There was no appearance by or for the applicant. The matter was called three times outside the Courtroom and there was no answer by the applicant. The Minister tendered Exhibit 1 as confirmation that the applicant was advised of the date and time of the hearing.
After a brief exchange with Ms Ellis for the Minister, the Court stated that it was satisfied that the matter should proceed pursuant to r 13.03C(1)(e) of the Rules. That is, that the hearing should proceed in the absence of the applicant.
The Court notes that this is the second occasion upon which the applicant has failed to appear at the date and time of the hearing of his matter. This is the second time that the Minister has prepared and attended to address the applicant’s application. This is the second time an interpreter has been provided to assist the applicant. The Court’s resources are limited and wastage of the Court’s already limited time (noting that migration matters are being listed into November 2021) is unsatisfactory.
In circumstances where the Court is satisfied that the applicant was aware of the hearing date and time, the applicant has demonstrated limited engagement with the Court or these proceedings and the matter was listed to be heard (and the Minister was well and truly prepared), the Court considered it appropriate to proceed to hear the matter on the merits as per r 13.03C(1)(e).
The Court is mindful of its duty to assist self-represented litigants and maintain astute and alert to the possibility of error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
As noted above, the Court considers the application in a case filed 23 October 2020 to be an application to set aside the orders of 14 October 2020. The factors that the Court generally looks at in an application of this sort include:
(a)whether there is a reasonable excuse for the party’s absence from the hearing at which the substantive application was dismissed;
(b)the length of any delay in seeking reinstatement and the existence and nature of any prejudice which might flow to the Minister from reinstatement. To the extent there is any prejudice, the Court will consider whether that prejudice can be mitigated by other relief such as costs; and
(c)whether the applicant has a reasonably arguable prospect of success in relation to the substantive application.
(MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530)
The materials before the Court relevant to its consideration of the application in a case filed 23 October 2020 include the substantive judicial review application dated 24 March 2020, the applicant’s affidavit dated 22 October 2020, correspondence confirming the date and time of the hearing (marked as Exhibit 1), a Court Book numbering 87 pages (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 18 September 2020.
CONSIDERATION
The Applicant’s Explanation for his Non-Appearance
The applicant’s explanation for not appearing before the Court on 4 October 2020 is provided in his affidavit affirmed 22 October 2020. The applicant explains that he was “very sick”.
Annexed to the applicant’s affidavit is a medical certificate which provides:
THIS IS TO CERTIFY THAT
[the applicant]
IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD
14/10/2020 TO 15/10/2020 INCLUSIVE
he WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION
This Certificate was completed on 13/10/2020
Ms Ellis, for the Minister, submits that the medical certificate did not provide an adequate explanation. The Court agrees.
The medical certificate is unsatisfactory. It is in generic and best described as “formulaic”. It simply indicates that the applicant was unfit for “his usual occupation”. It does not address the critical question of whether, and if so why, the illness that the applicant had at the relevant time prevented him from travelling to the Court and participating effectively in a court hearing (either in person or by telephone or video (an option made clear to the applicant on 7 October 2020)): NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559.
It is also noted that the medical certificate is dated 13 October 2020. This was the day prior to the hearing. The applicant made no attempt to contact Chambers or the Minister to request an adjournment. There was nothing to prevent the applicant from doing so. In fact, the correspondence sent from Chambers indicated that if the applicant was unable to attend in person because of illness, he should advise the Court immediately so that alternative could be made. The applicant did nothing to assist the Court or himself in this regard.
Overall, the Court does not consider that the explanation provided weighs in favour of reinstating the matter.
Delay and Prejudice
The delay in applying for reinstatement is 9 days. This is not a significant amount of time.
This weighs in favour of reinstating the application.
The Minister does not claim any prejudice. While a lack of prejudice is not determinative, it does weigh in favour of reinstating the application.
Merits
The merits of the substantive judicial review application are an important consideration in determining whether to set aside the Court’s orders and reinstate the application. It is therefore necessary to first outline the scope of the Tribunal’s decision.
The Tribunal’s Decisions
Here, the Tribunal made the Dismissal Decision on 28 February 2020. The Tribunal then made the Confirmation Decision on 16 March 2020.
The Dismissal Decision
In full, the Dismissal Decision provides:
1. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 28 February 2020 at 10:45am (WA time). 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. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. 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), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision
In full, the Confirmation Decision provides:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 April 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2. On 28 February 2020 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4. 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.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
Judicial Review Application
In his judicial review application filed 24 March 2020, the applicant raises the following grounds of review relevant to any “errors” in the Tribunal’s decision:
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.
The applicant was given an opportunity to file any amended application, affidavit evidence and an outline of written submissions in relation to his application for judicial review. No further materials were filed. As noted above, the applicant’s engagement with these proceedings was limited to filing the substantive application and the application in a case. He has made no other attempts to participate in the proceedings.
The Court notes that when assessing whether to reinstate is application, a significant factor for consideration is whether the substantive application has “merit”. The Court needs to determine whether there is “an arguable case” that the Tribunal had made a jurisdictional error. Whether there is an “arguable case” is an inquiry to be undertaken at a “reasonably impressionistic level”.
In CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (“CAL15”), Justice Mortimer stated:
4…The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
5. However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.
6. The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.
In relation to the possible categories of jurisdictional error, it is noted that (while not an exhaustive list) for migration decisions of this sort, the following categories of errors are most commonly seen:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
(b)where the decision-maker ignores relevant material: Craig at [198];
(c)where the decision-maker relies on irrelevant material: Craig at [198];
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
(e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa he now seeks. Rather, the Court can only undertake an analysis of whether it is reasonably arguable that the Tribunal engaged in jurisdictional error of the sort outlined above.
The Court is mindful of the above when determining for itself whether there is an arguable case that the Tribunal has fallen into jurisdictional error here.
Grounds of Review
In assessing the merits of the applicant’s substantive application, the Court will first consider the grounds of review in the applicant’s judicial review application filed on 24 March 2020.
To the extent that grounds 1, 2, 3 and 5 refer to the “first respondent”, the Court has no jurisdiction in relation to the “first respondent”: the Act, s 476(2) and (4).
Insofar as ground 1, 2 and 4 states that the Tribunal did not consider all the facts and documents the applicant had provided and then assess the consequences of him returning to his country, this is correct.
However, this does not amount to jurisdictional error. The Tribunal was not required to consider the facts and documents relevant to the application or the consequences of the applicant returning to his country. The application was dismissed pursuant to s 426A(1A)(b) which provides that the Tribunal may:
… dismiss the application without any further consideration of the application or information before the Tribunal.
Accordingly, the Tribunal was not required to consider the substantive application in any meaningful way.
To the extent that ground 3 can be read as a reference to the Tribunal not giving the applicant an opportunity to provide further information and documents, this is rejected. The Tribunal’s acknowledgment letter sent on 23 May 2017 to the applicant stated:
If you wish to provide material or written arguments for us to consider you should do so as soon as possible.
The applicant did not provide anything further. He had over two and a half years to provide further information and did not do so.
Further, the invitation to attend the hearing indicated:
Please use this form or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written arguments sent to us should be in English or be translated by a NAATI accredited translator
The applicant clearly had ample opportunity to provide further information.
Finally, to the extent ground 5 can be taken as being an argument that the Tribunal was “biased”, there is no basis for this.
It is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that there is an arguable case that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
The Tribunal invited the applicant to attend a hearing. He was on notice that the consequence of non-attendance was that the application may be dismissed. There is nothing to suggest that the Tribunal acted impartially in choosing to act as it did. Rather, as explained below, the Tribunal came to the only decision open to it.
The grounds of the judicial review application raise no reasonably arguable case.
Otherwise
The Court again notes that in its duty to the self-represented litigant (and noting that the applicant did not attend the hearing), it has considered the Tribunal’s decisions for itself to determine whether any arguable jurisdictional error is apparent: MZAIB; CAL15 at [40].
In relation to the Dismissal Decision, the applicant was validly invited to attend a hearing before the Tribunal: the Act, s 425A. The invitation stated the date, time and place of the hearing. It was sent to the applicant’s email address that he himself provided in connection with the review application. It was sent 16 days prior to the hearing (i.e., the notice given exceeded the minimum requirements). Finally, it contained a statement in the body of the invitation and a separate information sheet which clearly indicated the consequences for the applicant if he failed to attend.
The applicant did not attend the hearing. The Tribunal waited an additional 15 minutes for the applicant to arrive but he did not do so.
In the above circumstances, the Tribunal had the option to proceed to determine the application on the information before it, dismiss the application without considering the application or further adjourn the hearing to another day and time.
The Tribunal chose to dismiss the application without considering the application any further. It did so pursuant to s 426A(1A)(b).
The Court has considered whether it was reasonable for the Tribunal to have dismissed the application under s 426A(1A)(b) of the Act. In this regard it refers to Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 at [69]-[70]:
69. The Tribunal is exhorted to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”, to “act according to substantial justice and the merits of the case”, and in applying Div 4 of Pt 7, within which ss 425 and 426A are located, to “act in a way that is fair and just”. Because Div 4 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”, the Tribunal acting fairly and justly is entitled to regard an applicant to whom it is satisfied that an invitation complying with s 425 has been sent as having had adequate notice of his or her opportunity to appear before the Tribunal when considering exercising the discretion under s 426A(1) in the event of non-appearance.
70. Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that “no sensible [Tribunal] acting with due appreciation of its responsibilities” could have taken that course.
In the circumstances of this case, it was not unreasonable for the Tribunal to dismiss the application pursuant to s 426A(1A)(b) (as opposed to adjourning the application). Relevantly:
(a)the applicant was validly notified of the Tribunal’s hearing and there was no indication that the Tribunal’s notification was unsuccessful;
(b)the applicant was sent two SMS hearing reminders about the day and time of the hearing. Again, there was no indication that the messages were unsuccessful;
(c)there was nothing to indicate that the applicant’s non-appearance was out of the ordinary. The applicant had not provided any information in support of his application nor made any inquiries as to the progress of his application in the Tribunal for nearly three years. This shows an extreme level of disengagement;
(d)the Tribunal had contacted the applicant using two different means to advise him of the hearing (via email and text). There was no guarantee that if the Tribunal did adjourn the review the applicant would on the next occasion attend or even that the Tribunal would be able to contact him; and
(e)the Tribunal waited an additional 15 minutes after the listing time to ensure that the applicant was not running late.
In light of the above, and the Tribunal’s statutory objectives, it was reasonable for the Tribunal to proceed under s 426A(1A)(b) of the Act.
No reasonably arguable case of jurisdictional error arises in the Dismissal Decision.
In relation to the Confirmation Decision, the Tribunal was required to ensure that the applicant was notified of the Dismissal Decision.
The Dismissal Decision set out that the decision made was to dismiss the application pursuant to s 426A(1A)(b) and that the reason for this was because the applicant had failed to appear. It was sent to the applicant’s nominated email address on the same day that the Dismissal Decision was made (i.e. 28 February 2020). The Dismissal Decision stated that the applicant could apply for reinstatement by 13 March 2020 and contained information on how he could do so.
In circumstances where the applicant was validly notified of the Dismissal Decision and he did not apply for reinstatement, the Tribunal was required to make the Confirmation Decision: the Act, s 426A(1E). There is no discretion for the Tribunal to do otherwise.
Accordingly, the Tribunal complied with all of the procedural fairness obligations and otherwise acted reasonably in making its decision.
No reasonably arguable case of jurisdictional error is identified.
This weighs heavily against reinstatement.
COSTS
At the hearing, Ms Ellis for the Minister sought costs fixed in the amount of $500. The Minister had prepared for the hearing and attended the Court to respond to the application. The sum of $500 is appropriate in the circumstances.
CONCLUSION
The applicant seeks reinstatement of his application for judicial review dated 24 March 2020.
That request is denied.
The explanation provided by the applicant for his failure to attend a hearing before this Court on 14 October 2020 is unsatisfactory. Further, the applicant’s application for judicial review fails to identify any arguable case of jurisdictional error. The Court has otherwise been unable to identify any arguable error.
On the basis of the above, it is not considered in the interests of the administration of justice for the Court’s orders of 14 October 2020 to be set aside.
For the above reasons the Court ordered that the application in a case be dismissed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 22 February 2021
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