BIK22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 794
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BIK22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 794
File number(s): MLG 795 of 2022 Judgment of: JUDGE J YOUNG Date of judgment: 30 August 2023 Catchwords: MIGRATION – application for review of Registrar’s decision – application for review filed 5 days out of time – 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 – found that grounds for judicial review have no reasonable prospects of success Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.13(a), 21.02(1), 21.02(2), 21.04
Migration Regulations 1994 (Cth) reg 4.35D
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2)
Migration Act 1958 (Cth) Div 4 of Pt 7, ss 36(2), 425, 425A, 426, 426A, 426B, 441A, 441C(5)
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: 60 Date of hearing: 14 August 2023 Place: Melbourne Solicitor for the Applicant: Litigant in person Solicitor for the First Respondent: Ms Meaney of Mills Oakley Lawyers ORDERS
MLG 795 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIK22
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:
30 August 2023
THE COURT ORDERS THAT:
1.The applicant’s Application for Review of a Registrar’s Decision filed 1 August 2023 be dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $600.
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 20 July 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 on 11 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 Taiwan.
On 16 February 2019 the applicant applied for a Protection (subclass 866) visa (Visa) on the basis he claimed to fear harm from his girlfriend’s family who did not approve of the relationship and sent “people” to kill him.
The Department of Home Affairs (Department) confirmed receipt of the Visa application by correspondence dated 17 February 2019. In that correspondence, the applicant was advised the Department may make a decision on his Visa application without requesting further information and that he should therefore “provide us with all the information you feel is relevant”. The applicant was also advised in this letter of the need for him to keep the Department updated with regard to his contact details.
On 22 February 2019 the Department sent further correspondence to the applicant acknowledging receipt of a valid application. In that correspondence, the applicant was advised he could provide additional information relating to their claims and outlined three ways in which such information could be provided, namely, through ImmiAccount, mail or in person at the time of the collection of personal identifiers. The letter also informed the applicant that the decision on his application could be made without another opportunity for him to present any further information. The applicant did not provide the Department with any additional information.
Refusal of protection visa on 24 June 2020
On 24 June 2020, a delegate of the Minister (delegate) refused the applicant’s Visa application. The refusal notification attached the decision record of the delegate which stated the reason for the refusal of the Visa was on the basis that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2) of the Migration Act 1958 (Cth) (Act).
A copy of the delegate’s decision, as well as information about the applicant’s right of review, was sent to the applicant to his nominated email address on 24 June 2020.
Application for review at Tribunal on 25 June 2020
On 25 June 2020, 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 but did not provide a telephone number.
In correspondence from the Tribunal dated 26 June 2020 confirming receipt of his application, the applicant was advised if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. The applicant was also advised of his need to keep the Tribunal updated with regard to his contact details.
On 22 September 2021 the Tribunal emailed the applicant advising that the Tribunal was not holding in-person hearings and thus requested the applicant provide a telephone number to enable the Tribunal to consider his case for a video or phone hearing. On 28 September 2021, the applicant responded to the Tribunals’ request and provided the mobile number “xxxxx xxx04” for correspondence.
On 12 November 2021 the Tribunal emailed the applicant informing him that it had unsuccessfully attempted to contact him on his mobile on 4 November 2021 and requested that he inform the Tribunal as to whether he agreed to having a hearing conducted remotely, and if so, whether he preferred a videoconference or teleconference. On 19 November 2021 the applicant responded to the Tribunal’s request by email and requested his hearing be conducted in-person.
On 19 November 2021 and 2 March 2022, the Tribunal emailed the applicant informing him that it had made further unsuccessful attempts to contact him by telephone on these dates to discuss his request for an in-person hearing. The Tribunal requested the applicant contact the Tribunal as soon as possible to discuss the request for an in-person hearing.
On 2 March 2022 the applicant emailed the Tribunal advising that he had moved from Victoria to New South Wales, and provided his updated postal address.
On 3 March 2022 the Tribunal emailed the applicant enclosing an invitation for him to attend a hearing by videoconference on 21 March 2022 at 1.30pm with an information sheet attached. The invitation informed the applicant that the hearing was to be conducted by video conference from a hearing room of the Sydney Registry of the Tribunal, with the Member attending from Melbourne. 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.
On 20 March 2022 the applicant emailed the Tribunal a completed ‘Response to hearing invitation’ form in which he confirmed he would participate in the hearing.
At 3.34am on 21 March 2022, the applicant emailed the Tribunal seeking confirmation that the scheduled time for the hearing was 1.30pm. At 12.17pm on the same day, the Tribunal responded to the applicant confirming that the hearing was scheduled to commence at 1.30pm and reminding him that he needed to arrive at the hearing venue at least 15 minutes before the scheduled start time.
The applicant did not attend the hearing on 21 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 21 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 informed the applicant that reinstatement of the application could be sought by 4 April 2022. The applicant was also provided with an information sheet entitled “information about dismissal of applications” which informed the applicant 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 exercised the power in s 426A(1E) and 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 21 March 2022 at 1.30pm but did not appear at the scheduled time and place. 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 11 April 2022, the applicant filed an Application for 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 2 June 2022, the Minister sought orders that the Application be summarily dismissed pursuant to r 13.13 of the Rules.
On 5 July 2022, Orders were made in Chambers listing the matter for a summary dismissal hearing. Procedural orders were also made for the filing of a court book, written submissions and any additional evidence upon which the parties sought to rely. Relevantly, Order 5.2 of the Orders permitted the applicant to file any Amended Application with proper particulars of the grounds of the Application. The applicant did not file any Amended Application, nor did he file any written submissions or additional evidence.
Summary dismissal hearing on 20 July 2023
As stated, the summary dismissal Application was heard and determined by the Registrar on 20 July 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 14 July 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 August 2023, and that Application is to be conducted as a hearing de novo.
The Minister relies upon its written submissions filed on 6 July 2023.
At the hearing before me the applicant appeared on his 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 20 July 2023. An application for review of that decision in this Court was therefore required to be made no later than 27 July 2023. The Application for Review of the Registrar’s decision was not made until 1 August 2023.
Accordingly, the Application was made 5 days after the expiry of the statutory timeframe.
The Minister did not oppose any extension of time in this matter and in light of the short period of the delay in filing, the self-representation of the applicant, the applicant’s limited English skills and the absence of prejudice to the Minister (other than as to costs) if time were to be extended, I am satisfied that it is appropriate for the time for filing the review Application 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.[1] It is not necessary for the Court to be satisfied that the applicant is bound to fail.
[1] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473.
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.[2] 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”[3]. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.
[2] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
[3] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641, [46].
GROUNDS OF REVIEW
In his substantive Application for judicial review, the applicant raises the following grounds (without amendment):
1.The Tribunal erred in dismissing without considering my review application filed with AAT.
2.The tribunal failed to make its own finding on the materials before it.
3.The Tribunal failed to provide a procedural fairness by dismissing my review application.
At the hearing of this matter, the applicant was invited to elaborate on his grounds for review and made the following submissions for the consideration of the court:
(a)He did not intend to not attend the hearing;
(b)He wanted another opportunity to present his case.
I do not consider that either of these submissions advance the applicant’s case.
Firstly, it is uncontested that he did not appear at the scheduled hearing, irrespective of his intention. Secondly, in circumstances where the applicant did not apply for reinstatement, the Tribunal was required to confirm the dismissal decision. I address this latter matter further below.
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 he 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 3 March 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, as the applicant had completed the ‘Response to hearing invitation’ form which confirmed he would participate in the hearing. Moreover, the applicant had sought confirmation on the morning of the hearing that the hearing would be commencing at 1.30pm which demonstrates the applicant was on notice. 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 21 March 2022, notifying the applicant of the non-appearance decision and inviting him to apply for reinstatement, complied with the requirements of s 426(B) 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 he had 14 days in which to apply for reinstatement of the matter and, if he failed to apply for reinstatement within 14 days, the decision to dismiss the application must be confirmed (s 426B(6)).
Further, as stated, 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. Secondly, 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 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 in the fixed amount of $600. This is considerably less than the scale amount. I shall order accordingly.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 30 August 2023
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