BRK20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 731
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BRK20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 731
File number: MLG 1290 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 17 August 2023 Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – application refused. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44.
Migration Act 1958 (Cth) ss 425, 425A, 426A, 426A(1), 426A(1A)(b), 426A(1B), 426A(1E), 426B(2), 426B(4), 426B(5), 441A, 441A(5).
Cases cited: CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 8 August 2023 Place: Melbourne Advocate for the Applicant: In Person Solicitor for the Applicant: None Counsel for the Respondents: Mr Lettenmaier Solicitor for the Respondents: Spark Helmore ORDERS
MLG 1290 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRK20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
17 AUGUST 2023
THE COURT ORDERS THAT:
1.The Application filed on 21 April 2020 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $8,371.30.
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 BLAKE:
INTRODUCTION
This is an application for judicial review. The Applicant seeks to effectively review two decisions of the Administrative Appeals Tribunal (‘Tribunal’). In the first decision made on 6 March 2020, the Tribunal dismissed the Applicant’s application before it because the Applicant failed to appear at the Tribunal hearing (‘non-appearance decision’). In the second decision made on 14 April 2020, the Tribunal confirmed its decision to dismiss the application before it (‘confirmation decision’).
The application in this Court was filed by the Applicant on 21 April 2020 (‘Application’). The Application was supported by an affidavit filed by the Applicant on 21 April 2020.
For the reasons that follow, I have decided to dismiss the Application.
BACKGROUND
The Applicant is a Malaysian national. The Applicant arrived in Australia on 24 March 2016 on a tourist visa. The Applicant applied for a Protection (Class XA) (Subclass 866) visa (‘visa’) on 22 June 2016.
On 23 March 2017, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa. On the same date, the Applicant applied to the Tribunal for review of the delegate’s decision.
On 25 September 2019, the Applicant was invited to attend an in-person hearing before the Tribunal. The hearing was scheduled for 6 November 2019.
On 7 October 2019, the Tribunal wrote to the Applicant. The Tribunal provided the Applicant with certain information which it considered would, subject to the receipt of his comments, be the reason or part of the reason for affirming the decision under review. The Applicant was invited to provide comments by 21 October 2019.
On 9 October 2019, the Applicant sent an email to the Tribunal. In the email, the Applicant sought to change the hearing date to February 2020.
On 11 October 2019, the Tribunal notified the Applicant that his request for an adjournment was approved, and that the hearing was rescheduled to 10 January 2020.
On 9 January 2020, the Tribunal advised the Applicant that the hearing was postponed due to the unavailability of a suitable interpreter. The hearing was subsequently rescheduled to 5 February 2020.
The Applicant did not attend the hearing on 5 February 2020.
On 6 February 2020, the Tribunal wrote to the Applicant. The Tribunal informed the Applicant that he would be provided with another opportunity to attend a hearing on 6 March 2020, due to a building lockdown that had occurred on 5 February 2020.
The Applicant did not attend the hearing on 6 March 2020.
Subsequently, on 6 March 2020, the Tribunal wrote to the Applicant. The Tribunal informed the Applicant that it had decided to dismiss his application for non-appearance. The Tribunal also informed the Applicant that he had the opportunity to apply for reinstatement of his application by 20 March 2020. The letter attached a copy of the non-appearance decision.
On 14 April 2020, the Tribunal wrote to the Applicant. In its letter, the Tribunal informed the Applicant that it confirmed its decision to dismiss his application. The letter attached a copy of the confirmation decision. The confirmation decision recorded that the Applicant had been advised that reinstatement could be sought within 14 days of receiving the dismissal statement. The confirmation decision confirmed no application for reinstatement had been made. The Tribunal therefore confirmed its decision to dismiss the application.
The Applicant filed an Application in this Court on 21 April 2020.
On 23 May 2023, procedural orders were made by a Registrar to prepare the matter for hearing.
Before me, the Applicant was unrepresented. He relied on the Application and the affidavit he filed with the Application. The Minister relied on the Court Book, a written outline of submissions, orders and a document tendered during the hearing. I stood the matter down to enable the Applicant to consider, with the assistance of the interpreter, the terms of the document the Minister tendered and wished to rely on.
THE APPLICATION
The Application contained five Grounds of Review. They are reproduced below as they appear in the Application.
1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE
2.THE TRIBUNAL DEPRIVED ME OF PROCEDUR FAIRNESS
3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER TRIBUNAL CASE;
4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABOUT THE TYPES OF HARM RELEVANT IN MY CASE.
5.ACCORDING IN SECTION 44 OF THE ADMINISTRATIVE APPEAL TRIBUNAL ACT 1975 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT.
The Applicant was unable to meaningfully expand upon the Application before me. He appeared to admit to not attending the hearing before the Tribunal. He also told the Court that he did not understand the procedure, and did not understand English.
The contention that the Applicant does not understand English at all is open to some doubt. In his visa application (Court Book 16), he indicated that he could speak, read and write in English. He also communicated with the Tribunal in English in relation to his adjournment application, albeit his English in that communication is poor. The Applicant certainly knew enough about procedure to request an adjournment of the Tribunal’s hearing.
Putting those matters to one side, turning to the Grounds of Review, I observe they are unparticularised. That is a sufficient basis upon which to dismiss the Application, see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Grounds one, three and four take issue with the manner in which the Tribunal conducted the hearing or reached its conclusion. Ground one is a complaint about the failure to consider the substance of the Applicant’s claim. Ground four is a complaint about the failure of the Tribunal to ask questions about the types of harm suffered by the Applicant. Self-evidently, the Tribunal did not do those things. It did not need to. The Applicant did not attend the hearing, and did not advance his case. The Tribunal dealt with the matter on the basis of the Applicant’s non-appearance and, subsequently, his failure to seek reinstatement of his application. To the extent the Applicant raises the issues he does in Grounds one, three and four, they do not engage with the reasons given by the Tribunal for the non-appearance decision, or the confirmation decision.
Ground three asserts the Tribunal acted on incorrect information. The Applicant has not been able to particularise what the incorrect information is, let alone how it was utilised by the Tribunal. There is nothing that I have seen which indicates that the Tribunal acted on incorrect information in reaching the non-appearance decision and the confirmation decision.
In Ground two, the Applicant asserts (without particulars) that he has been denied procedural fairness. In that respect, it is worthwhile recounting the following:
(a)The Applicant was first invited to attend a hearing of the Tribunal on 25 September 2019. Subsequent invitations to attend a hearing were sent on 11 October 2019, 10 January 2020 and 6 February 2020;
(b)Each of the invitations above were sent in accordance with section 425 of the Migration Act 1958 (Cth) (‘Act’);
(c)Each of the invitations complied with section 425A of the Act. Among other things, each invitation:
(i)was sent to the Applicant’s email address. The email address used was the email address nominated by the Applicant in his application to the Tribunal (Court Book 74). The Tribunal therefore also complied with the notice requirement specified in section 441A(5) of the Act; and
(ii)contained a statement to the effect of section 426A.
Having regard to the above, it is clear that the Tribunal complied with its obligations under sections 425, 425A and 441A of the Act. It is clear the Applicant was invited to the hearing, and given the opportunity to participate in the hearing.
The Tribunal ultimately dismissed the application for non-appearance under section 426A(1A)(b) of the Act on 6 March 2020. In that respect, I observe that:
(a)Section 426A deals generally with the failure of an applicant to appear before the Tribunal if the applicant is invited under section 425 of the Act to appear, and does not appear (section 426A(1) of the Act);
(b)Section 426(1A)(b) permits the Tribunal by written statement under section 426B to dismiss an application without any further consideration of the application or information before the Tribunal;
(c)Section 426B(2) provides that if the Tribunal makes a non-appearance decision, the Tribunal must make a written statement setting out the particulars enumerated within subsection (2);
(d)Section 426B(4) specifies that the Tribunal has no power to vary or revoke a non-appearance decision after the day and time the written statement is made; and
(e)Section 426B(5) provides that the Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2), and that the copy must be given to the applicant within 14 days after the day on which the decision is taken to have been made by one of the methods specified in section 441A.
A review of the non-appearance decision in this matter reveals that it was made in accordance with the requirements set out above.
The Applicant had the opportunity to apply for reinstatement of his application pursuant to section 426A(1B). He did not do so. His failure meant that section 426A(1E) was enlivened. That section provides that if an applicant fails to apply for reinstatement within the 14 day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application by written statement. A review of the non-appearance decision and the confirmation decision reveals that the Tribunal acted in accordance with these particular obligations. The Tribunal has not made an error in reaching the non-appearance decision or the confirmation decision.
It is worth observing that this is a case in which the Applicant failed to appear at all at the hearing. To the extent it is necessary to say so, this fact distinguishes the present matter from that in CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352.
Finally, there is Ground five of the Grounds of Review. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) does not appear to have any relevance to the present Application.
When the above matters are considered, the Applicant has not been denied procedural fairness. Nor has the Tribunal acted inconsistently with any obligation placed upon it under the Act.
CONCLUSION
There is no merit in any of the Grounds of Review. The Application must be dismissed.
The Minister sought an order for costs fixed in the amount of $8,371.30. The Minister has been entirely successful and the Applicant wholly unsuccessful. I will therefore make an order for costs in the amount of $8,371.30.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 17 August 2023
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