BXS17 v Minister for Immigration

[2018] FCCA 1309

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXS17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1309

Catchwords:
MIGRATION – Protection (class XA) visa – applicant failed to attend tribunal hearing – applicant validly received tribunal communications – applicant failed to apply for a review of decision in time given – application before tribunal dismissed for non-appearance.

PRACTICE AND PROCEDURE – Show cause hearing – sole ground of review lacked merit – embedded in ground was a statement by the applicant that the applicant was unhappy with tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 426A(1A)(b)
Federal Circuit Court Rules 2001, r.44.12

Cases cited:
AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68
Siddique v Minister for Immigration and Border Protection (2014) 114 ALD 328

Spencer v Commonwealth of Australia (2010) 241 CLR 118

SZTTW v Minister for Immigration and Border Protection [2014] FCA 837

Applicant: BXS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 908 of 2017

Judgment of: His Honour Judge Wilson

Hearing date: 14 May 2018

Date of Last Submission: 14 May 2018

Delivered at: Melbourne

Delivered on: 14 May 2018

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: None

Counsel for the First Respondent:

Solicitors for the First Respondent: DLA Piper Australia

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: DLA Piper Australia

ORDERS

1. This proceeding is dismissed. 

2. The applicant pay the first respondent’s costs fixed in the sum of $3,606. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 908 of 2017

BXS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

1. By application filed 4 May 2017 the applicant applied for judicial review of a decision of the Administrative Appeals Tribunal made originally 21 March 2017 then confirmed on 5 April 2017. 

2. In essence, the applicant complained that he did not receive notice within time of the decision of the tribunal arising out of complications with an email address.  While superficially straightforward the facts of this case involved a little investigation.  To that I now turn. 

3. The applicant applied for a protection (class XA) visa on 11 May 2016. The minister’s delegate refused that application on 20 June 2016. The delegate was not persuaded that grounds for the grant of protection existed under s.36(2)(a) or s.36(2)(aa) of the Migration Act.  Being dissatisfied with that decision, the applicant sought a merits review on 6 July 2016. 

4. By letter dated 28 February 2017 the tribunal invited the applicant to attend an interview before it to present arguments and give evidence, such hearing to be conducted on 21 March 2017.  That invitation was sent by email to the address notified by the applicant on his application to the tribunal.  He did not appear.  

5. On 21 March 2017 the tribunal dismissed the applicant’s application for a merits review in reliance upon s.426A(1A)(b) of the Migration Act.  In very brief reasons given at 11.41am on 21 March 2017 the tribunal recorded as follows –

   The applicant was invited under s.425 of the Migration Act 1958 (the Act) to appear before the Tribunal on 21 March 2017 at 0930 am, but did not appear at the scheduled time and place. As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

6. The tribunal gave notice of its decision to the applicant and included a notification of the applicant’s rights to seek a review of that decision.  In that communication the tribunal told the applicant that if he sought reinstatement he needed to explain his reasons for non-appearance and to give a basis for his application.  He did not apply to the tribunal and as a result on 5 April 2017 the tribunal confirmed its decision to dismiss the application for a merits review. 

7. In very brief reasons for its dismissal, the tribunal recorded as follows  –

   1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 June 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act);

   2.On 21 March 2017 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing;

   3.The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with section 426B(5).  The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14-day period would result in confirmation of the dismissal decision; 

   4.As the applicant did not reapply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application.  In these circumstances the decision under review is taken to be affirmed.  

   Decision –

   5.The Tribunal confirmed the decision to dismiss the application. 

   Mara Moustafine

   
   

   Member

8. On 28 April 2017, as was common ground, the applicant approached counter staff of the tribunal saying that he had altered his email address.  He did not file any documentation to reflect his new email address.  All documentation to that date given by the tribunal to the applicant had been emailed to the applicant at his email address as nominated by the applicant.  In a letter dated 28 April 2017 the applicant gave what he said was his new email address.  By then, 23 days had elapsed since the date on which the tribunal confirmed its decision, the upshot of which was that the decision of the delegate stood.  

9. The tribunal said on 2 May 2017 that it had decided on his case and there was no power in the tribunal to take any further steps in the proceeding.  On 4 May 2017, in his application for judicial review filed on that day, the applicant came to this court raising unparticularised statements as his grounds of application in the following terms –

   I haven’t received any email, letter and phone calls from AAT.  I havin troubles with my email was failed to updated.  On 2 May, I went to AAT for asking my hearing date but they refused.  I’m unhappy with AAT decision. (errors in original)  

In this court

1. On 22 November 2017, when this proceeding was first before a registrar of this court, by consent, orders were made requiring the applicant to file an amended application with proper particulars of the ground of application together with any supplementary court book and written submissions 28 days prior to today. No such documentation has been served or filed. The registrar further ordered that this proceeding be heard before me as a show cause application on this day pursuant to r.44.12 of the Federal Circuit Court Rules.

2. On the hearing of a show cause application under r.44.12 the court has an array of powers including the power to summarily dismiss the proceeding if satisfied that the applicant has not raised an arguable case for the relief he seeks. That is not a power unchecked. Various authorities have held that the power under r.44.12 has two components to it. The first is that the court reaches a lack of satisfaction that the applicant has raised an arguable case for the relief claimed. Under the second, the court retains a residual discretion whether or not to dismiss the application.

3. When considering whether to exercise the residual discretion the merits of the application for review are critical.  It was therefore necessary for me to examine whether the applicant raised an arguable case for the relief he sought and it was additionally necessary for me to examine the merits of the case in the overall.  So much was held by Gilmour J in Siddique v Minister for Immigration and Border Protection[1] as well as by Beach J in SZTTW v Minister for Immigration and Border Protection.[2] 

   [1] (2014) 114 ALD 328

   [2] [2014] FCA 837

4. According to other statements of principle an order dismissing a proceeding and therefore summarily entering judgment against an applicant is a step not to be taken lightly.  The High Court decision in Spencer v Commonwealth of Australia[3] as well as the decision of the Full Court of the Federal Court in AMF15 v Minister for Immigration and Border Protection[4] stand as authority for those propositions. 

   [3] (2010) 241 CLR 118

   [4] [2016] FCAFC 68

5. Turning to the merits of the case the applicant complained that he did not receive any emails, letters or phone calls from the tribunal.  The evidence does not bear out that assertion.  The evidence indicates that the invitation to attend the interview with the tribunal was regularly and properly given by the dispatch of the notice to the applicant at his last given email address. 

6. The email address was as the applicant had supplied to the tribunal.  Whether or not the applicant had changed that email address or was otherwise unable to access his email account was a matter for him because the tribunal did what it was required to do by giving the applicant appropriate notice of its invitation to attend on the date that it gave and to email that invitation to the last known address as notified by the applicant to the tribunal.  The tribunal did what it was required by the legislation to do.  I am not persuaded that the applicant did not validly receive the email communications that the tribunal was required to give him.  

7. The applicant did not attend at the date of the tribunal hearing.  He gave no explanation nor any satisfactory explanation for that failure.  He agreed when I asked him today whether he received that notification that he did in fact get it.  He also agreed that he received notification of the fact that the tribunal sent him notice on 21 March 2017 of its decision to dismiss the proceeding for his non-appearance.  He also agreed that he was told that he could apply for reinstatement.  Self-evidently he failed to apply for a review of the dismissal within the time given.  

8. The first written communication from the applicant emerged on 28 April 2017 when he indicated that he had not received notification from the tribunal by reason of his altering his email address.  He made that communication on 28 April 2014, the tribunal having confirmed its decision to dismiss the proceeding for non-appearance 23 days earlier.  Inferentially the confirmation decision was made by reason of there being no application to reinstate the proceeding.  In my opinion the tribunal did nothing wrong in undertaking the course that it undertook in the circumstances in this case. 

9. Embedded in the applicant’s application for judicial review was a statement that he was unhappy with the decision of the tribunal.  His happiness or otherwise with the decision of the tribunal has no bearing on the question for me, namely, whether the tribunal fell into jurisdictional error in the circumstances of this case. 

Conclusion

1. I am not persuaded that the tribunal made any error in this case, let alone jurisdictional error.  For those reasons, in my opinion, the applicant has failed to make out any case for judicial review in this case. 

2. I dismiss the application and order the applicant to pay the minister’s costs in the fixed sum of $3,606. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:       23 May 2018