Bie18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCCA 3422
•26 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIE18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2019] FCCA 3422 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal erred in dismissing the applicant’s application for review of a decision of a delegate of the first respondent in circumstances where the applicant failed to attend a scheduled hearing before the Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision was affected by legal unreasonableness – whether Administrative Appeals Tribunal complied with the statutory regime in inviting the applicant to a hearing – whether Administrative Appeals Tribunal’s findings were open to it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J, 36, 425, 425A, 426A, 441A, 441C, 474, 499 |
| Cases cited: Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v Stretton [2016] FCAFC 11 Kaur v Minister for Immigration and Border Protection [2016] FCA 132 Gazi v Minister for Immigration and Citizenship [2013] FCA 1094 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1 Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 |
| Applicant: | BIE18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 720 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 26 November 2019 |
| Date of Last Submission: | 26 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitor for the Respondents: | Mr Cameron O’Sullivan (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 720 of 2018
| BIE18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By an application filed on 19 March 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal, dated 2 March 2018 (“the Tribunal”). That decision affirmed a decision of a delegate of the first respondent (“the Delegate”) refusing the applicant a protection visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
The chronology, the applicant’s protection claims and the Tribunal’s decision are accurately summarised in the written submissions of the first respondent as follows:
“CHRONOLOGY
3. The applicant is a citizen of the People's Republic of China (China), who arrived in Australia on 9 February 2015 on a business visitor visa (Court Book (CB) 132 at [2]). The applicant applied for the protection visa on 13 February 2015 (CB 1 to 59).
4. On 11 December 2015, the applicant was invited to attend an interview with the delegate (CB 68 to 76). The applicant did not respond to the invitation nor did he attend the interview (CB 81 to 82). The delegate made a decision on 22 January 2016 to refuse to grant the protection visa which was notified to the applicant on the same day by post (CB 77 to 89).
5. The applicant applied to the Tribunal for merits review of the delegate's decision on 16 February 2016 (CB 90 to 91). Relevantly, he provided the Tribunal with the following email and mobile contact details (CB 91):
Mobile: [mobile number redacted]
Email: [email address number redacted]
6. On 17 February 2016, the Tribunal sent the applicant a letter by way of email (CB 104 to 111), which relevantly stated (CB 105):
It is important that you: tell us immediately if you change your contact details …If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice…
7. On 13 June 2017, the Tribunal sent the applicant a letter by way of email, requesting that he advise of his availability to attend a hearing (CB 112 to 113). On 21 December 2017, the Tribunal sent the applicant a letter by way of email inviting him to attend a hearing scheduled for 1 March 2018 (CB 115 to 124). That letter relevantly stated:
We have considered the material before us but we are unable to make a favourable decision on this information alone. (CB 116)
…
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…(CB 117 and 120)
8. On 22 February 2018 and again on 28 February 2018, the Tribunal sent the applicant an SMS reminder that his hearing was scheduled for 1 March 2018 (CB 125).
9. The applicant did not attend the hearing (CB 126 to 128), and the Tribunal affirmed the decision under review on 1 March 2018 (CB 131 to 137).
PROTECTION CLAIMS
10. The applicant's protection claims (CB 30 to 32) can be summarised as follows:
10.1 The applicant was put under surveillance and discriminated against by the Chinese government because he comes from a Christian family.
10.2 He has been monitored by police, and he and his family have not been able to obtain a formal job or university education because of their beliefs. He worked at a university from October 1983 to February 2014, and was dismissed without pay because the police told his employer that he was 'a very dangerous man'.
10.3 His wife told him that since arriving in Australia, police have visited his home in China and demanded from his wife the applicant's whereabouts. The applicant claims that his wife and son were detained, and that he fears that he will be taken by the police if he were to return.
TRIBUNAL DECISION
11. The Tribunal considered that the applicant had been properly invited to the hearing in accordance with s 441A(5) of the Migration Act 1958 (Cth) (Act). Pursuant to s 426A(1A)(a) of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it: (CB 132 at [3]-[4]).
12. The Tribunal found that none of the applicant's claims were supported (CB 132 at [14]-[16]). The Tribunal noted that the applicant had failed to attend the interview with the delegate in January 2016, and the hearing before the Tribunal and specified the information it needed and would have sought had the applicant attended the hearing (CB 134 at [17]-[18]).
13. The Tribunal therefore found that the applicant had not provided sufficient evidence to demonstrate a well-founded fear of persecution or that he faced a real risk of significant harm (CB 134 at [19]).”
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter.
I explained to the applicant that the role of this Court is very different to that of the Tribunal. I explained that the only issue before this Court was whether or not the decision of the Tribunal was made according to law. I explained that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake that goes to its jurisdiction. I explained that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake. I explained that if the Tribunal made its decision and conducted its review in accordance with the legislative scheme, then the fact that the applicant may disagree with the outcome is not sufficient to demonstrate jurisdictional error on the part of the Tribunal.
The applicant confirmed that he had attended a directions hearing before a registrar of this Court on 9 April 2018. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support. The applicant was also provided at that directions hearing with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language. The matter was set down for callover on 13 June 2019.
On 13 June 2019, the applicant appeared before me and the applicant was again directed to file and serve written submissions and the matter was set down for hearing today before me.
The applicant confirmed to the Court that he has not filed any further material and nor does he have any further documents to provide to the Court this morning.
The applicant confirmed that he relied on the grounds contained in an Application, filed on 19 March 2018, as follows:
“1. I am [applicant’s name], as I felt that I would be in danger and be detained by the Chinese government once I return to China, I lodged a 866 protection visa application, but the visa was refused.
2. As I changed my email address and did not attation to AAT , The Tribunal said they sent me SMS reminder about hearing, but I did not received this SMS so I did not appear before the Tribunal on the day .”
Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support. The applicant had nothing to say in support of either of the grounds of the application or in support of his application generally.
Following the submissions of the first respondent, the applicant was again invited to say whatever he wished in support of his application generally or in response to anything that he had heard from the solicitor for the first respondent. Again, the applicant declined to say anything further.
In his application for review of that decision, the applicant provided his correspondence details, including a mobile number and an email address.
The solicitor for the first respondent tendered a bundle of relevant documents, which were filed on 7 May 2018 and marked as Exhibit 1R. Exhibit 1R disclosed that on 16 February 2016, the applicant lodged an application with the Tribunal for review of a decision of the Delegate dated 22 January 2016, refusing the applicant a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations.
On 17 February 2016, the Tribunal wrote to the applicant acknowledging receipt of the review application and informing the applicant that it was important to tell the Tribunal immediately of any change to his contact details and inviting the applicant to provide any further written material or arguments that he wished to have considered. Attached to that letter was an information sheet that explained the review process to the applicant. The information sheet also provided for the applicant contact details of immigration assistance. The applicant did not send any further information pursuant to that invitation. That letter was emailed to the applicant at his email address identified in the review application.
On 13 June 2017, the Tribunal by email to the applicant’s email address sent a letter to the applicant again and invited him to send any additional information and to advise, as soon as possible, if there was any reason why the applicant may not be able to attend a hearing. That letter also provided language assistance details for the applicant, as well as the national inquiry line telephone number.
On 21 December 2017, the Tribunal, by email to the applicant’s identified email address, sent a letter to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter invited the applicant to appear before the Tribunal to give evidence and present arguments in relation to the issues arising in his case. The letter provided the date, time and location of the hearing in accordance with s.425 and s.425A of the Migration Act 1958 (Cth) (“the Act”).
The letter of invitation also advised the applicant that if he was unable to attend the hearing he should advise the Tribunal as soon as possible and that if he did not attend, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it; and his application for review may be dismissed without any further consideration of the application or the information before the Tribunal. That letter again provided the applicant with the contact details of translating and interpreting services, the national inquiry line telephone number and an information sheet about hearings before the Tribunal.
On 1 March 2018, the Tribunal handed down its decision. The Tribunal recited the procedural history of the matter. The Tribunal then noted that the Tribunal had sent the applicant SMS reminders on two occasions about the hearing, respectively five and two business days before the scheduled hearing, and found that those reminders had been received as no notification of transmission failure had been received.
The applicant did not appear before the Tribunal at the scheduled hearing.
The Tribunal was satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act; that the email invitation did not fail to send; and, in the circumstances, pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal then identified the relevant criteria for a protection visa and referred to the mandatory considerations in Ministerial Direction No.56 made under s.499 of the Act.
The Tribunal then identified the applicant’s claims but found that none of the applicant’s claims were supported.
The Tribunal noted that the applicant had not provided any evidence of his practice as a Christian and no evidence to support his claims about police approaching his family after he left China. The Tribunal also noted that the applicant had been invited to an interview by the Delegate in 2016 but had failed to attend that interview or explain his non-attendance.
The Tribunal found that there was insufficient information and material before it to satisfy it that the applicant met the relevant criteria. In particular, the Tribunal noted that it needed more detailed information from the applicant as to how and why the purported circumstances of his case gave rise to a real chance of s.5J(1)(a) related persecution in the reasonably foreseeable future or to a real risk of significant harm as defined in s.36(2)(a) and s.5(1) of the Act. The Tribunal found that without more from the applicant, it was not satisfied that the applicant had a well-founded fear of persecution or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that the applicant would suffer significant harm.
In the circumstances, the Tribunal was not satisfied that the applicant met the criteria in s.36(2)(a) of the Act or the complementary criteria in s.36(2)(aa) of the Act and, accordingly, affirmed the decision under review.
Section 426A of the Act provides that the Tribunal may proceed to make a decision on the review without taking any further steps to enable the applicant to appear before it where an applicant fails to appear at a hearing. Section 426A(1A)(a) is in the following terms
“(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”
In circumstances where the applicant failed to attend the hearing, the Tribunal was entitled to exercise its discretion under s.426A(1A)(a).
The Tribunal satisfied itself that the applicant had been invited to a hearing in accordance with the legislative scheme and the documents provided in Exhibit 1R bear that out.
It is well established that the Tribunal’s exercise of a statutory discretion, such as one in s.426A, must be exercised reasonably (see Minister for Immigration v Li (2013) 249 CLR 332 (“Li”) at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [17] per Perry J; Gazi v Minister for Immigration and Citizenship [2013] FCA 1094 at [34] per Logan J, Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [63] per Allsop CJ, Griffiths and Wigney JJ; and Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1 at [38], [44] and see [7] per Griffiths, Kerr and Farrell JJ). In the case before this Court, the Tribunal satisfied itself that the relevant statutory regime had been complied with by inviting the applicant for review to appear before it.
In Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at 69 (“SZVFW”), Gageler J stated as follows:
“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.
Section 441C(5) of the Act provides that if the Tribunal gives a document to a person by, inter alia, email, the person is taken to have received the document at the end of the day on which the document is transmitted. In the case before this Court, all communications with the applicant were sent to the applicant’s identified email address. There is no evidence before this Court that the applicant ever took steps to provide a different email address to the Tribunal.
In the grounds of his application, the applicant stated that he changed his email address but it does not say when. In any event, it is the applicant’s responsibility to ensure that the Tribunal is at all times apprised of his current contact details. That is the fundamental responsibility of the applicant, as communication from the Tribunal made clear. The Tribunal pointed out to the applicant the importance of maintaining current contact details. There was nothing before the Tribunal to suggest that the Tribunal was aware of any change to the applicant’s email address provided in his review application to the Tribunal. Moreover, the Tribunal further sent two SMS reminders to the applicant’s mobile number identified on his review application.
It is clear from a fair reading of the Tribunal’s decision record that the preconditions for the exercise of its discretion under s.426A of the Act were met, and in the terms referred to by Kiefel CJ in SZVFW at [8] and [9], which are as follows:
“8. In this case those preconditions were met. The invitation required by s 425 was given by one of the methods specified in s 441A, as s 425A requires. Moreover, s 441C has the effect that a person is deemed to have received a document given by one of the methods so specified. There was nothing before the Tribunal to suggest to the contrary of that state of affairs. It was entitled to proceed to consider the exercise of its powers under s 426A.
9. It is difficult to see how it might be concluded that the decision that the Tribunal then made – not to make further contact with the respondents and adjourn its hearing for that purpose – was unreasonable. To the contrary, it was perfectly explicable given the history of the respondents' non-responsiveness. It is to be inferred that a conclusion that it was unreasonable must involve some misapprehension of what is comprehended by the legal standard of unreasonableness.”
I am satisfied that in the case before this Court, the Tribunal’s decision falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (Li at [105] per Gageler).
In conclusion, the exercise of the Tribunal’s discretion in proceeding with the review in the absence of the applicant, without taking any further step to allow or enable the applicant to appear before it was, in all the circumstances, open to the Tribunal on the evidence and the material before it, and for the reasons it gave.
The Tribunal’s decision and the exercise of its discretion is without error and, accordingly, pursuant to s.474 of the Act, this Court has no power to intervene.
The proceeding should be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Deputy Associate:
Date: 29 November 2019
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