BSU15 v Minister for Immigration
[2020] FCCA 859
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BSU15 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 859 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection Visa – application for extension of time – whether the Tribunal failed to exercise discretion – where the Tribunal exercised legal unreasonableness – whether jurisdictional error made out – no jurisdictional error made out – application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.48, 425, 426, 477, 494 Federal Circuit Court Rules 2001 (Cth), rr.15.27, 21.07 |
| Cases cited: ALD v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1286 Aneja v Minister for Immigration and Border Protection [2014] FCA 572 BYM16 v Minister for Immigration and Border Protection [2017] FCCA 2445 BZAGU v Minister for Immigration and Border Protection (2015) 235 FCR 133 Minister for Immigration v Li (2013) 297 ALR 225 Minister for Immigration v Stretton [2016] FCAFC Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 MZZSK v Minister for Immigration & Anor [2014] FCCA 883 SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 SZTES v Minister for Immigration and Border protection [2015] FCAFC |
| Applicant: | BSU15 |
| First Respondent: | MINISTER FOR IMMIGRATION , CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1854 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 16 April 2020 |
| Date of Last Submission: | 15 April 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 15 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Okereke-Fisher |
| Solicitors for the Applicant: | Revelman Legal |
| Counsel for the Respondents: | Ms Carr |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
Grant leave for the application for extension of time.
Grant leave for the applicant to rely upon two grounds of appeal filed in the Amended Application, dated 30 March 2020.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $8267.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1854 of 2019
| BSU15 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
The applicant is a Chinese National. The applicant arrived in Australia on 14 March 2002 as the holder of a Visitor’s Visa.
On 5 April 2002, the applicant lodged an Application for a Protection (Class XA) Visa. On 16 April 2003, the Tribunal affirmed the delegate of the Minister for Immigration and Multicultural and Indigenous Affair’s decision, not to grant the Protection (Class XA) Visa. The decision was delivered on the 7 May 2003.
On 7 July 2010, the applicant applied for a second Protection (Class XA) Visa application under a different name. This was determined not to be a valid application pursuant to s 48A of the Migration Act 1958 (Cth) (“the Act”).
The applicant lodged a third Protection (Class XA) Visa application on 26 March 2013. The applicant made claims under the complimentary protection criteria. The applicant claimed to fear harm on account of her involvement with Trade Union Activism, underground house churches, her Korean ethnicity, creditors and her poor health.
On 8 May 2014, a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Protection (Class XA) Visa.
On the 23 May 2014, the applicant sought review of the delegate’s decision with the then Refugee Review Tribunal (“the RRT”). On 31 July 2015, the Administrative Appeals Tribunal (“the Tribunal”), which by then had merged with the RRT, affirmed the delegate’s decision, not to grant the applicant a Protection (Class XA) Visa. The applicant subsequently sought judicial review of this decision.
On 28 August 2017, the Court made orders by consent, that the Tribunal’s decision of 31 July 2015 be quashed and that the matter be remitted to the Tribunal to reconsider, according to law.
On 8 April 2019, the applicant was invited to attend a hearing before the reconstituted Tribunal, listed on 7 May 2019. This invitation was sent to the applicant’s authorised recipient’s email address, which had been provided to the Tribunal, by way of an Appointment of an Authorised Recipient, received by the Tribunal on 30 October 2017. The applicant did not respond to the invitation.
On 30 April 2019 and 6 May 2019, short messaging service (“SMS”) reminders were sent to the applicant’s mobile phone number. The applicant did not attend the hearing. Tribunal staff rang the authorised recipient’s mobile phone number. The call was not answered, however, a message was left on voicemail. Staff also telephoned the applicant’s mobile phone number, but there was no response. The Tribunal also attempted to resend the hearing invite to the authorised recipient’s email address, however they received a bounce back from the email address. The Tribunal accordingly decided to dismiss the application, pursuant to s 426A(1A)(b) of the Act.
The applicant did not seek reinstatement of the application within 14 days and accordingly, on 22 May 2019, the Tribunal confirmed the delegate of the Minister for Immigration’s dismissal decision, as required by s 426A(1E) of the Act.
On 23 May 2019, the applicant’s authorised recipient wrote to the Tribunal, advising that he had changed his email address and forgot to notify the Tribunal. The applicant’s authorised recipient also advised that the applicant had received SMS reminders, but had thought that they were spam, as she could not understand English. The applicant’s authorised recipient also advised that he did not answer the phone call from the Tribunal on the date of the hearing, as he was in the middle of a meeting. The applicant’s authorised recipient accordingly asked for another chance for a hearing before the Tribunal. This request was considered, but the Tribunal determined, that there was no jurisdictional error in the case and that the matter could not be reopened.
Application for an extension of time
The initial application for judicial review was not lodged with the Court until 23 July 2019.
It was conceded by the applicant, that the application for review by the Court was lodged 35 days after the cut-off period, which fell on 26 June 2019 (see s 477(1) of the Act).
Pursuant to s 477(2) of the Act, the Court has the power to allow an extension of time, if it is satisfied that it is necessary, in the interests of the administration of justice, were time to be extended. In SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 (“SZRIQ”), Foster J stated at [46] – [48]:
[46] There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
[47] The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b)Whether there is any prejudice to the Minister;
(c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[48] The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.
In support of the application for an extension of time, the applicant sought to rely upon an affidavit sworn by her on 22 July 2019. The first respondent notes that the applicant states at the beginning of her affidavit, that she can neither read nor write in the English language. However, this affidavit did not include the Alternative Jurat for Non-English speaking Deponents.
In the absence of evidence that the affidavit was translated either in writing or orally and the applicant understood the contents of it, the first respondent contended that the affidavit was inadmissible pursuant to
r 15.27 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
According to r 15.27(3) of the Rules, if an affidavit is made by a person who is incapable of reading it and an appropriate Jurat does not appear in the affidavit, it may not be used in a proceeding, unless the Court is satisfied that:
a) the affidavit was read, or if appropriate, the translation read, and given in writing, to the person,
b) the person seemed to understand the affidavit;
c) in the case of a person physically incapable of signing - the person indicated that the contents were true.
The tender of the affidavit was rejected.
After the issue was raised, Counsel for the applicant indicated that the applicant and her Migration Agent, who was an Accredited Interpreter, were available to give evidence by phone. Given that the applicant’s legal representatives were put on notice as to the issue with the affidavit on 9 April 2020, when they were served with a copy of the first respondent’s submissions and there was no affidavit from the applicant served, the Court rejected this proposal. The Court further noted that, if evidence was to be called, it should have been from the person who witnessed the applicant’s affidavit.
At the request of the applicant’s Counsel, the matter was stood down for the affidavit to be re-sworn in accordance with relevant requirements. After a period of an hour, a re-sworn affidavit was produced to the Court. That affidavit was sworn before a person who listed their qualifications as ‘interpreter’. After some questioning by the Court, it became clear, that the witness was not qualified to witness an affidavit as they were not a Justice of the Peace or a Legal Practitioner. The first respondent maintained their objection to the affidavit in either form being admitted into evidence. Accordingly, the Court refused to accept the re-sworn affidavit into evidence.
In relation to the reasons for the delay of the filing of the application, Counsel for the applicant submits at paragraph 4 of their submissions, that the applicant is a non-English speaker with a minimal knowledge of the Australian legal system. Further, the delay is not so substantial as to weigh against the grant of an extension.
Counsel for the applicant submitted that the s acknowledged the receipt of the SMS messages, but had ignored them, as she is not fluent in English and assumed that they were junk marketing SMS.
Counsel for the applicant submits that save as to costs, no prejudice flows to the Minister. The potential for prejudice to the applicant, if the extension for time were refused, is real and substantial.
In relation to the grounds of review, for the purposes of considering an extension of time, it is not necessary to establish that the application will succeed at final hearing. Rather, the Court is simply required to examine the grounds of the application in a reasonably impressionistic manner, to consider whether any one of them might be arguable, reasonably arguable or have a reasonable prospect of success (see SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (“SZTES”) at [48] per Wigney J).
The Court does not consider that the explanation for the delay in the lodgement of the application before the Court, is particularly strong. The applicant has had some previous experience in relation to matters coming before the Court and would presumably be aware that there are time limits.
The Court considers the prejudice that would flow to the applicant, to be considerable, should the application for an extension of time be rejected. It was properly conceded that no real prejudice flows to the first respondent should an extension of time be granted. In terms of the grounds of the application, the Court was satisfied at an impressionistic level, that the grounds of appeal reached the threshold level of arguable.
Accordingly, the Court granted the extension of time required pursuant to s 477(2) of the Act for the filing of the Initiating Application in the Court.
Grounds of Appeal
On 15 August 2019, consent orders were made inter alia:
1.The matter is fixed for an extension of time hearing and, if granted, final hearing at 10:00am on 15 April 2020 before Judge Humphreys at 1-3 George Street, Parramatta. The duration of the hearing is estimated to be 2 hours.
2.The first respondent file an electronic copy of the court book, send a hard copy to the Parramatta registry of the Federal circuit Court and serve a hard copy on the applicant on or before 26 September 2019.
3.The applicant has leave to file and serve any amended application giving complete particulars of each ground of review on or before 7 November 2019.
4.The applicant must file and serve any affidavit containing additional evidence to be relied upon, including any transcript of an interview or hearing on or before 7 November 2019.
5.The first respondent must file and serve any affidavit containing any additional evidence to be relied upon in answer on or before 21 November 2019.
6.The applicant file and serve written submissions and any list of authorities on or before 5 December 2019.
7.The first respondent file and serve written submissions and any list of authorities on or before 19 December 2019.
The applicant did not comply with the above orders.
The first respondent complied with the orders and filed written submissions on 17 December 2019.
On 30 March 2020, the applicant filed an amended application along with written submissions. The application sought to amend ground one in the original application and add an entirely new ground two.
An affidavit sworn by Colin Revelman, Solicitor for the applicant dated 15 April 2020, (the day before the hearing) was tendered. That affidavit at paragraphs [3] and [4] stated:
[3] In relation to paragraph 8 of the amended submissions, I have been informed by Ms Uche Okereke-Fisher, the applicant’s Counsel briefed in this matter, that the reason for the lateness of the amended application, is that the arguments leading to the proposed new grounds only crystallised in the course of Counsel drafting the applicant’s submissions.
[4] Further in relation to paragraph 8 of the amended submissions, in respect of the late submissions, I emailed the Associate to His Honour, Judge Humphreys on 19 March 2020, explaining the reasons for the administrative oversight of having not filed the Applicant’s submissions by the ordered date of 5 December 2019. A copy of that email, is annexed and marked “B”.
In BYM16 v Minister for Immigration and Border Protection [2017] FCCA 2445 at [6] – [9] Smith J commented, as summarised, that:
It seems within the Immigration Jurisdiction within this Court, that compliance with the Court’s orders by some members of the profession who appear for applicants is considered optional rather than mandatory. Non-compliance with orders without seeking leave of the Court, is not only discourteous both to the Court and to the respondent’s legal representatives but impacts on the timely preparation of matters by both the Court and the respondents. It is a practice which must cease. The use of costs being awarded to reflect work thrown away by non-compliance with orders for the filing of amended applications by applicants is clearly not effective. The Court understands that in many cases, where an applicant is ultimately unsuccessful, they will depart Australia with any legal costs owing to the Commonwealth unpaid.
Provision exists within the Court’s rules for costs to be awarded against a party’s lawyer, where the lawyer has unreasonably failed to file, lodge, or deliver a document as required, or do any other act necessary for the hearing to proceed (see r 21.07(2) of the Rules). It may well be that the time has come where the Court needs to resort to this provision, in appropriate cases, in order to make it clear to practitioners that the orders of the Court are to be complied with, or if they cannot be complied with for any reason, that the Court is to be approached with an explanation and a request to vary the order that was made. Where this latter procedure is adopted, it is a very rare circumstance that orders will not be made, to reflect the request.
Given the fact that Chambers were contacted by Mr Revelman and submissions, as well as the amended application were filed with the Court 14 days prior to the hearing date, the Court proposes to grant leave to rely upon the amended application. This however, should not be assumed as the course that the Court will adopt in the future, in all matters.
The amended grounds of the application are as follows (less particulars):
1. Jurisdictional error. The Tribunal’s failure to exercise the discretion in s 426(A)(2) of the Act so as to reschedule a hearing in circumstances where:
(i) the Applicant’s application is a Protection Visa application and non-determination of her case would lead to her return to a country where she fears harm of persecution;
(ii) the Applicant does not read or write in English; and
Section 426A(2) of the Act empowered the Tribunal to reschedule a hearing, was unreasonable, leading to a Tribunal decision that is plainly unjust and lacking an evident and intelligent justification.
2. Jurisdictional error. The Tribunal erred by taking into account irrelevant consideration, in the course of exercising or considering to exercise its discretionary power, pursuant to s 426(A)(1)(b) of the Act leading to jurisdictional error.
Consideration
Ground 1
The applicant does not contend that the Tribunal’s decision to proceed as it did under s 426A(1)(b) of the Act, was unreasonable. Rather, the applicant contends that, given the factual matrix of the case in the applicant’s circumstances and the fact that discretionary power under
s 426A of the Act enabled an election between a dismissal of the application and a rescheduling, a failure to exercise the discretion not to reschedule was legally unreasonable.
A discretionary power, such as that found in s 426A of the Act, must be exercised reasonably (see Minister for Immigration v Li (2013) 297 ALR 225 at [105]). The applicant submits that here, legal unreasonableness is outcome focused, without the identification of an underlying error in the Tribunal’s decision making process. The applicant further submits that the Tribunal’s failure to rely on the operation of s 426A(2) of the Act, lacks an evident and intelligible justification. There is no comment on the written statement which explains why the Tribunal failed to proceed in accordance with s 426A(2) of the Act.
Counsel for the applicant submits that the case notes of the Tribunal from of 5 September 2019 reveal that the applicant had previously indicated a preference to receive communication by post. In these circumstances, the Tribunal could have proceeded to send an invitation letter by post, before proceeding to dismiss the application.
Further, given that the Tribunal was aware that that the applicant was unable to speak English, it was unreasonable for the Tribunal to rely on untranslated SMS hearing reminders sent in English, for the purpose of demonstrating that it had made efforts to reach the applicant, prior to relying upon s 426A(1A)(b) of the Act. Furthermore, the Tribunal failed to send SMS reminders to the applicant’s authorised recipient.
The first respondent submits that the Tribunal’s decision to proceed to dismiss the application under s 426A(1) of the Act and provide a written statement, that any further consideration of the application under
s 426A(1A)(b) of the Act was entirely open to it in circumstances where the applicant had failed to attend the scheduled hearing and the hearing invitation complied with the s 425A of the Act notice requirements. Those requirements are simply that the invitation advised the applicant of the day, time and place of the hearing. That notice was sent to the email address of the applicant’s nominated authorised representative and contained a statement to the effect of s 426A of the Act, to make a decision or dismiss the proceedings.
The first respondent notes, at paragraphs 11 and 12 of their submissions, that a valid invitation was sent to the applicant’s nominated authorised representative, two SMS hearing reminders were sent out before the hearing, the Tribunal telephoned the authorised recipient’s mobile phone number and left a voicemail message and also telephoned the applicant’s mobile number. To the extent that the applicant contends that the Tribunal “could have attempted some further communication with the applicant without difficulty,” it is submitted that the Tribunal was not required to make some roving inquiry of its own motion to ascertain if the applicant would appear at the scheduled hearing (see Aneja v Minister for Immigration and Border Protection [2014] FCA 572 at [25] per Logan J).
The Tribunal’s reasons provide an evident and intelligent justification for the exercise of discretion under s 425A(1) of the Act, in that, it sets out the history of the contact details and a representative noted that the applicant had agreed to the Tribunal corresponding by email, noted 2 SMS reminders had been sent and that the Tribunal had attempted to telephone her and left a voicemail message with her nominated representative. It was submitted by Counsel of the first respondent that the Tribunal’s decision to proceed to dismiss the application, rather than adjourn it, was within the “area of decisional freedom” that the Tribunal possesses (see ALD v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1286 [25] per Farrell J). Further, although reasonable minds might differ, this is not sufficient to found jurisdictional error (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611(“SZMDS”) at [131]).
The Court is reasonably satisfied that the Tribunal complied with all relevant notification procedures pursuant to s 425 of the Act. Indeed, the Court is satisfied that the Tribunal went well beyond the requirements of s 425 of the Act, by taking the additional actions of sending two SMS reminders to the applicant, attempting to resend the invitation letter to the applicant’s authorised representative recorded email address and attempting to telephone both the applicant and her authorised representative on the day of the hearing.
The applicant’s authorised representative accepts full responsibility for failing to notify the Tribunal of the change in his email address. The applicant’s authorised representative also accepts that he did not check his voicemail until 23 May 2019. This may be considered unreasonable, given the responsibilities of the authorised representative.
The applicant’s main complaint it appears, is that the Tribunal did not do more than what is set out above. The Court rejects that assertion. The Tribunal took reasonable steps to contact both the applicant and her nominated representative. The Tribunal was simply not satisfied on the material before it that they were good reasons for the applicant’s non-attendance.
The Court is satisfied that the decision to dismiss the application, in the circumstances of this case, is legally reasonable. The Tribunal’s decision clearly set out the steps taken to ensure the attendance of the applicant and does not lack an evident and intelligible justification. The Court is satisfied that the preconditions for the exercise of the power to dismiss the application were satisfied. Although some may consider the decision harsh, it is not a decision which is plainly unjust, arbitrary capricious or lacking common sense, such that it can be said to be outside the range of possible lawful outcomes as an exercise of that power (see Minister for Immigration v Stretton [2016] FCAFC) at [11]). Nor is it illogical or irrational (see SZMDS at [131]).
Ground 2
Ground 2 asserts that the Tribunal fell into jurisdictional error by taking into account an irrelevant consideration (see MZZSK v Minister for immigration & Anor [2014] FCCA 883 (“MZZSK”)). Counsel of the applicant submits that it was unreasonable for the Tribunal to rely on un-translated SMS messages sent to the applicant, when the Tribunal was aware that the applicant needed the services of a Korean interpreter.
The applicant asserts that the SMS reminders were not sent to the applicant’s authorised representative. The applicant submits that the Tribunal was required to pass all information regarding the application to the applicant’s authorised representative (see s 494D of the Act). The Tribunal did not send the SMS reminders to the authorised representative. Consequently, the Tribunal could not rely upon this failure as a reason to dismiss the application, as it was an irrelevant consideration.
Counsel for the first respondent notes that there is no requirement for the Tribunal to give notice of the scheduled hearing to the applicant in her native language (see BZAGU v Minister for immigration and border protection (2015) 235 FCR 133 at [19] per Logan J). Further, the Tribunal had no statutory obligation to give the applicant any further reminders of the hearing date after satisfying the requirements of s 425 and s 425A of the Act.
The applicant’s reliance on MZZSK is misplaced. That case is distinguishable from the present matter because the Tribunal in MZZSK, proceeded to make a decision without taking further action to allow or enable the applicant to appear, rather than dismissing for non-appearance as it did in this case. Further, the Court held that, it was an irrelevant consideration for the Tribunal in MZZSK to take into account discrepancies in the applicant’s claim to be a homosexual male, as a basis for proceeding to determine the application for review, without taking further action to enable him to appear before it. This error does not arise in the current case.
In relation to the complaint of failure to comply with s 494D of the Act, this section only provides for the sending of documents. The Tribunal complied with s 494D of the Act by sending the hearing invitation letter to the applicant’s authorised recipients email address. The provision of the SMS messages were only further reminders of the scheduled hearing.
The Court is satisfied that the Tribunal complied with all relevant statutory provisions concerning the notification of the hearing to the applicant, via her authorised recipient. It cannot be said that s 494D of the Act was not complied with, as the hearing invitation was the only “document” that was required to be sent. It seems incongruous for the applicant on the one hand, in ground one above, to argue that the Tribunal should have done more to ensure that the applicant was aware of the hearing and yet in ground 2, to complain that by taking into account the additional actions it undertook, it committed jurisdictional error, as these were irrelevant.
The Court is satisfied that it was reasonable for the Tribunal to properly record all of the actions it took to ensure that the applicant was aware of the hearing, to provide a record of those actions to this Court and any other Court, that may review the matter. Once the Tribunal was satisfied that the relevant notification requirements had been met, the Tribunal was entitled to dismiss the application as it did. The Court is not satisfied that it was a jurisdictional error to record the additional steps taken to ensure that the applicant was aware.
The applicant’s complaints, such as they are in both grounds, to the Courts mind, simply invite the Court to undertake merits review of the Tribunal’s decision. This is not the role of the Court. The Court is not satisfied any jurisdictional error is apparent.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 15 May 2020
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