Bot18 v Minister for Immigration

[2019] FCCA 2793

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOT18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2793

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – dismissal for non appearance by the Tribunal – whether the Tribunal properly corresponded with the applicant’s representative considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.426A, 426B

Migration Regulations 1994 (Cth)

Applicant: BOT18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 851 of 2018

Judgment of: Judge Driver

Hearing date: 1 October 2019

Delivered at: Sydney

Delivered on: 1 October 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Saunders of DLA Piper

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 851 of 2018

BOT18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal decided on 2 February 2018 to dismiss the review application before it under s.426A(1A)(b) of the Migration Act 1958 (Cth) (Migration Act). Subsequently, on 1 March 2018, the Tribunal confirmed that decision. The dismissal decision was made because the applicant failed to attend the hearing to which he had been invited.

2. Backgrounds facts relating to this matter are set out in the Minister’s initial outline of submissions filed on 14 February 2019

3. The applicant is a citizen of Malaysia born 16 January 1983[1] who arrived in Australia on 4 May 2015 as the holder of an Electronic Travel Authority (subclass 601).[2]

   [1] Court Book (CB) 63

   [2] CB 95

4. On 17 May 2016, the applicant applied for a protection (subclass 866) visa. In summary the applicant claimed to fear harm from loan sharks.[3]

   [3] CB 1-89

5. The application was refused by a delegate of the Minister (delegate) on 10 March 2017.[4]

   [4] CB 95-107

6. On 15 April 2017, the applicant applied to the Tribunal for review of the delegate's decision. [5] 

   [5] CB 108-109

7. On 5 December 2017, the Tribunal invited the applicant to a hearing on 2 February 2018 at 2.30 pm. The Tribunal sent the invitation to the applicant's representative's email address.[6]

   [6] CB 114-125

8. On 25 December 2017, the Tribunal sent an SMS reminder to the applicant's mobile number.[7]

   [7] CB 149

9. On 27 January 2018, the applicant's representative advised that he no longer acted for the applicant and requested that all correspondence be sent directly to the applicant.[8]

   [8] CB 127-128

10. On 29 January 2018, in response to the above notification:

    a)the Tribunal attempted to contact the applicant by telephone, noting that it did not connect, the Tribunal also noted that the email provided was that of the prior representative;[9]

    b)the Tribunal noted that it tried to send a letter by express post to the applicant, but that it was unlikely to reach the applicant before the hearing in three days' time (express post number 634 01 107 393 092).[10] The letter asked the applicant to fill out an appointment form or a change of contact details form, it also attached the invitation to attend a hearing sent to the former representative on 5 December 2017;[11] 

    c)the Tribunal noted that the SMS sent to the applicant did not register as failed so it was possible that the applicant would receive at least two SMS reminders which might encourage him to contact the Tribunal.[12]

    [9] CB 129

    [10] CB 129

    [11] CB 131-143

    [12] CB 129

11. On 1 February 2018, the Tribunal sent a further SMS reminder to the applicant's mobile number.[13]

    [13] CB 149

12. On 2 February 2018, the applicant did not appear before the Tribunal and it dismissed the application pursuant to s.426A(1A)(b) of the Migration Act at 2.39 pm on the same date.[14]

    [14] CB 161

13. The Tribunal attempted to call the applicant at 2.32 pm, the phone call went to voicemail and the Tribunal did not leave a message.[15]

    [15] CB 149

14. Notification of this decision, and the applicant's rights to apply for reinstatement within 14 days, was sent by email to the applicant’s migration agent on 5 February 2018. The email attached information which described the effect of ss.426A(1B)-(1F) as required by s.426B(6) of the Migration Act.[16]

    [16] CB 155-161

15. The applicant did not seek reinstatement of his application under s.426A(1B) and did not make any contact with the Tribunal.

16. On 1 March 2018 the Tribunal confirmed its dismissal decision pursuant to s.426A(1E) of the Migration Act.[17]

    [17] CB 163-167

The present proceedings

1. These proceedings began with a show cause application filed on 29 March 2018.  To the extent relevant the applicant continues to rely upon that application.  There are three grounds in it:

   1. There exists procedural error because my claims were ignored.  Failure of attending hearing does not mean that my claims should not be considered.

   2. Tribunal does not consider whether immigration officer dealt with my application properly.

   3. Tribunal does not consider harm I will suffer if I return to Malaysia.

   Thus, there exists jurisdictional error in my case.

2. The application was supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 4 May 2018. 

3. This matter came before me for a show cause hearing on 21 February 2019. At that time it was not clear to me whether the Tribunal had corresponded with the applicant to his authorised recipient as required under the Migration Act and Migration Regulations 1994 (Cth) (Regulations). In particular, it was not clear from the court book whether and how the applicant’s former authorised representative became or remained his authorised recipient.

4. At that time I ordered, pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), that the Minister show cause why relief should not be granted in circumstances where there was no evidence that the applicant’s representative was also his authorised recipient. The circumstances were clarified by the affidavit of David Brian Sweeting, the Acting Technical Lead at the Tribunal, made on 20 May 2019. Mr Sweeting gives evidence as to the operation of the Tribunal’s online application form. I received that affidavit as evidence. In essence the answer appears to be that, by using the online application form and nominating a representative, that representative became the authorised recipient.

5. The matter is dealt with in more detail in the Minister’s supplementary submissions filed on 24 September 2019.  I agree with those submissions.

6. At the show cause hearing on 21 February 2019, there was no evidence before the Court to suggest that the applicant appointed his representatives as his authorised recipient as the application for review by the Tribunal only provided for "Representative details".[18]

   [18] CB 108-109

7. In order to address this deficiency, on 20 May 2019, the Minister filed with the Court the affidavit of Mr Sweeting. In his affidavit, Mr Sweeting deposes steps he took in order to determine how an applicant would indicate they were appointing an authorised recipient in the online review application form for the Tribunal.

8. In light of his examination of the online form, Mr Sweeting concluded that the applicant would have answered yes to the question "Is a representative being appointed to act on the applicant's behalf and to be the authorised recipient?" for the review application form to appear as it did at CB 108-109.[19]

   [19] see page 4 of Mr Sweeting’s affidavit

9. The evidence of Mr Sweeting demonstrates that in using the online review application form, where an applicant appoints a representative, this representative is also appointed as an authorised recipient.

10. I accordingly accept that, the applicant appointed his representative as his authorised recipient and as such, the Tribunal's invitation to hearing dated 5 December 2017 complied with the statutory requirements of the Migration Act as set out in the Minister’s submissions filed on 14 February 2019.

11. The applicant is aggrieved that his protection claims were not considered by the Tribunal.  That was, however, a lawful consequence of his failure to attend the hearing to which he had been invited.  To the extent that the grounds in the applicant’s show cause application have any continuing relevance, those grounds are adequately dealt with in the Minister’s initial written submissions, with which I agree.  The applicant is unable to demonstrate that either decision of the Tribunal is affected by any jurisdictional error.  The decisions are therefore privative clause decisions, and the application must be dismissed.  I will so order.

12. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,500.  The applicant enquired about his obligation to pay but did not oppose a cost order.

13. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  3 October 2019