BXT18 v Minister for Immigration
[2019] FCCA 2455
•28 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXT18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2455 |
| Catchwords: MIGRATION – Protection (subclass 866)(Class XA) visa – decision of Administrative Appeals Tribunal – where Tribunal dismissed the application for non-appearance – where applicant did not apply for re-instatement – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 425A, 426A, 426B, 430, 441A, 476 Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: AYT16 v Minister for Immigration & Border Protection [2017] FCA 252 Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 |
| Applicant: | BXT18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 204 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 28 August 2019 |
| Date of Last Submission: | 28 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 28 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms A Coole |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The first respondent’s name be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 204 of 2018
| BXT18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
By application filed in this Court on 16 April 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 23 March 2018.
The Tribunal confirmed an earlier decision it had made on 8 March 2018 to dismiss the applicant’s review application for non-appearance. The effect of the decision was that a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (subclass 866)(Class XA) visa (the “visa”) was undisturbed.
The applicant now seeks judicial review of the Tribunal’s decision in this Court pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”).
The Court had before it the applicant’s judicial review application filed 16 April 2018, a Court Book (“CB”) numbering 120 pages and an outline of written submissions filed by the Minister on 5 August 2019.
The Court noted that the applicant did not have a copy of the Court Book with him at the hearing of this matter. The Court asked the applicant why he did not have the Court Book with him. He indicated that he “had not received it”.
Counsel for the Minister, Ms Coole, was able to assist the Court in this regard. She confirmed that the Court Book had, in fact, been sent to the applicant at the address for service that the applicant had provided. A copy of that confirmation was marked as Exhibit 2. The Court is satisfied that the necessary evidence was sent to the applicant, as required.
In an attempt to assist the applicant, a hard copy of the Court Book was given to him in Court. It was explained to the applicant that, to the extent that Ms Coole or the Court referenced any materials in the Court Book, the Court would ask the interpreter, who was assisting the applicant, to translate any provisions referred to, or any other references to material, in the Court Book.
It was also noted that the applicant did have a copy of the Minister’s written submissions and had had ample time to review those submissions. Noting, however, that the applicant did not speak English, the Court asked Ms Coole, for the Minister, to provide a detailed overview of the Minister’s submissions. Ms Coole did so. The Court thanks her for the clarity of her oral submissions.
The applicant raised what appeared to be concerns in relation to the advice he had been given by his migration agent and the quality of the services provided by that agent. The Court notes that there does not appear to be any evidence before it that a migration agent was, at any time, used by the applicant in relation to his proceedings before the Tribunal.
Putting that aside, however, to the extent that the applicant has any concerns about the quality of the advice or services he was given by a migration agent, he is directed to the services offered by the Office of the Migration Agents Registration Authority (the “OMARA”). The OMARA is best able to assist the applicant in relation to any concerns he has in this regard.
Overall, the Court has done what it can do to ensure that the applicant is afforded procedural fairness.
The Court thanks the interpreter for the considerable assistance she provided and thanks Ms Coole for the assistance she provided both the Court and the applicant, who was legally unrepresented and who does not speak English.
Background
The Minister’s written submissions filed 5 August 2018 at [3]-[9] accurately summarise the factual background to this matter. The Court has reviewed the extensive materials in the Court Book and is satisfied that the Minister’s summary correctly details the matters relevant to this matter. The Court adopts that summary as its own. It provides as follows.
The applicant is a citizen of Malaysia (CB 38-39). He last arrived in Australia on 26 February 2016 as the holder of an UD-601 Electronic Travel Authority visa which was valid until 26 May 2016 (CB 56 and 99).
On 21 March 2016, the applicant lodged an application for a protection visa with the former Department of Immigration and Border Protection (the “Department”) (CB 1-37). He was granted a bridging visa in association with his protection visa application on 5 April 2016 (CB 56 and 99).
On 8 March 2017, a delegate of the Minister refused to grant a protection visa to the applicant (CB 56-71) and on 3 April 2017 he applied to the Tribunal for review of the delegate’s decision (CB 72-78). In his application for review, the applicant requested that the Tribunal send correspondence about his application to him and provided a postal address and an email address. The applicant also agreed to the Tribunal sending all correspondence by email (CB 75).
By letter dated 8 December 2017, sent by email to the applicant’s email address, the applicant was invited to attend a hearing before the Tribunal on 8 February 2018 (CB 87-89). By letter dated 8 January 2018, the applicant was advised that the Tribunal member was unable to conduct the hearing on 8 February 2018 and the applicant was invited to attend a hearing before the Tribunal on 8 March 2018 (CB 95-96). The invitation to attend the hearing on 8 March 2018 was also sent by email to the applicant’s email address on 8 January 2018 (CB 94).
The applicant did not attend the hearing before the Tribunal on 8 March 2018 and the Tribunal decided to dismiss the application under s.426A(1A)(b) of the Act without further consideration of the application or the information before the Tribunal (the “Non-Appearance Decision”) (CB 101 and 109).
The applicant was notified of the Non-Appearance Decision by letter dated 8 March 2018 which was sent on that date by email to the applicant’s email address (CB 106-107). The letter attached a copy of the Non-Appearance Decision, together with an information sheet and advised him that he could apply, in writing, for reinstatement of the application by 22 March 2018.
The applicant did not apply for reinstatement of the application and on 23 March 2018 the Tribunal confirmed the Non-Appearance Decision pursuant to s.426A(1E) of the Act and issued a written statement under s.430 of the Act (the “Confirmation Decision”) (CB 115-116). The applicant was advised of the Confirmation Decision by letter dated 23 March 2018 which was sent by email to the applicant’s email address on that date (CB 113-114).
The Tribunal’s Decision
On 8 March 2018, the applicant failed to attend the hearing before the Tribunal and the Tribunal dismissed the application.
In full, the Non-Appearance Decision provides:
1. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 8 March 2018 at 11:30am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent an SMS reminder to the applicant’s nominated telephone number about the hearing five business days before the scheduled hearing.
2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act, the invitation has not been returned to sender, and that an SMS reminder was also sent to the review applicant about the hearing. When the review applicant did not appear before the Tribunal on the day and at the scheduled time and place, the Tribunal called the applicant on his nominated telephone number without success. Accordingly, no satisfactory reason for the non-appearance has been given.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal. On 23 March 2018, the Tribunal confirmed the non-appearance decision. The Court will also extract that decision in full in any written reasons.
On 23 March 2019, the Tribunal confirmed the Non-Appearance Decision. In full, the Confirmation Decision provides:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2. On 8 March 2018 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 s.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 apply 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 confirms the decision to dismiss the application.
Proceedings in this Court
The applicant seeks the issue of constitutional writs setting aside the Tribunal’s decision. The applicant’s application for judicial review, however, contains no grounds of review.
The applicant was afforded an opportunity by a Registrar of this Court to file an amended application, any affidavits and a written outline of submissions. No materials were filed by the applicant.
On one view, the application could be seen as incompetent and could, arguably, be dismissed on this basis alone: Dashti v Minister for Immigration & Multicultural Affairs [2000] FCA 1631 at [4]; EBE17 v Minister for Immigration & Anor [2018] FCCA 45 at [19].
However, noting recent remarks in the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that an applicant (particularly an applicant seeking protection) should be offered an opportunity to orally explain what they believe the Tribunal “did wrong”, the Court allowed the applicant an opportunity to do so.
To assist the applicant, the Court explained to him that this Court can only turn its attention to the issue of jurisdictional error. It noted that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, they most commonly include, and are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
e)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court invited the applicant to explain what he thought the Tribunal did wrong. Unfortunately, the applicant was not able to provide information that went to jurisdictional error. In effect, what he said to the Court was that he did not attend the Tribunal hearing because he had lost his phone and was having trouble with email and/or internet access. He, therefore, “missed the hearing”.
While the Court is sympathetic to the concerns raised by this applicant, applicants in migration proceedings are required to ensure that the Tribunal is well-aware of their address for service and whether they are having any difficulty with electronic communication or communication generally. The applicant admitted to the Court that he had not let the Tribunal know that he was having difficulties of the sort he outlined.
Regrettably, this Court cannot help him in relation to the concern he raised orally.
Consideration
Without grounds of review it is difficult for the Court, and the Minister, to gage what it is that the applicant feels the Tribunal did wrong.
The Minister, quite appropriately, directed the written submissions towards the exercise of the Tribunal’s power under s.426A of the Act. The Minister argues that the necessary preconditions for the exercise of that power were met and, in all the circumstances, it was reasonable for the Tribunal to exercise the discretion not to dismiss or non-appearance.
The Court accepts the Minister’s submissions.
Section 426A of the Act provides the Tribunal with the discretion to dismiss an application if an applicant fails to appear on the day and at the time of the hearing.
To determine if the Tribunal has erred there are in effect two matters the Court must consider:
a)whether the Tribunal followed all the necessary procedural requirements prior to the hearing and following the Non-Appearance Decision; and
b)whether it was it reasonable, in all of the circumstances, for the Tribunal to exercise the discretion.
In respect of the procedural requirements necessary to enliven the power to dismiss under s.426A, the Tribunal must have invited the applicant to a hearing pursuant to s.425 and that invitation must accord with the requirements of s.425A of the Act.
Here, the invitation to the hearing:
a)clearly indicated the day, time and place of the hearing on the first page of the document: the Act, s.425A(1);
b)was sent via email (a method approved by s.441A(5) to the applicant’s nominated email account on 8 January 2018: the Act, s.425A(2)(a);
c)was provide to the applicant more than 14 days prior to the hearing date and thus in excess of the minimum notice period prescribed by reg.4.35D(3) of the Migration Regulations 1994 (Cth): the Act, s.425A(3); and
d)contained a statement describing of the effect of s.426A and what would happen if the applicant did not attend the hearing: the Act, s.425A(4).
The Court notes that the applicant was sent an earlier information to attend a hearing, however that hearing had to be cancelled. For finality, that hearing invitation (dated 8 December 2017) also satisfied each of the requisite requirements of s.425A.
There was no error in relation to this aspect of the Tribunal’s conduct. All natural justice requirements were satisfied.
The applicant was validly notified of the Tribunal hearing. He failed to attend on the day of the hearing. In those circumstances, s.426A(1) was enlivened and the Tribunal could choose to dismiss the proceedings pursuant to s.426A(1A)(b). The Tribunal did so.
In choosing to dismiss the proceedings under s.426A(1A)(b), the Tribunal was then required to issue a written statement in accordance with s.426B. It did so via the Non-Appearance Decision.
Relevantly, the Non-Appearance Decision:
a)set out that the decision was to dismiss the application pursuant to s.426A(1A)(b) and that the reasons for that decision was because the applicant had failed to appear at the Tribunal hearing: the Act, s.426B(2)(a)-(b);
b)clearly indicated the day and time of the Non-Appearance Decision as 8 March 2018 at 11.15am: the Act, s.426B(2)(d);
c)was given to the applicant by email (a method prescribed in s.441A(5)) on the same day that the Non-Appearance Decision was made: the Act, s.426B(5); and
d)contained an information leaflet which described the effect of sub-ss.426A(1B)-(1F) of the Act: the Act, s.426B(6).
The procedural requirements required to notify the applicant of the Non-Appearance Decision were all performed in accordance with the Act, and there is no error in this aspect of the Tribunal’s conduct.
The applicant failed to apply for reinstatement of his application within 14 days of the Non-Appearance Decision. Having failed to do so, the Tribunal was mandated to dismiss the application under s.426A(1E) of the Act: AYT16 v Minister for Immigration & Border Protection [2017] FCA 252.
At all times, the Tribunal acted in accordance with the natural justice requirements proscribed under the Act.
In relation to whether it was reasonable for the Tribunal to exercise the discretion to dismiss the application, the Court notes as follows.
In relation to the Non-Appearance Decision, the Court is satisfied that it was reasonable for the Tribunal to act as it did in circumstances where:
a)the Tribunal had sent an SMS hearing reminder to the applicant’s mobile telephone number reminding him of the hearing (CB 112);
b)the Tribunal also attempted to contact the applicant on the telephone number he provided at the time of the hearing but to no avail (CB 112);
c)the applicant did not provide a “Response to Hearing Invitation” and had not provided any documents in support of the review application to the Tribunal. The applicant had no meaningful communication with the Tribunal since his application had been on foot; and
d)there had been no request for an adjournment or any indication that one was needed.
It is clear from the above that the applicant’s lack of engagement with the review process did not alert the Tribunal to the fact that the applicant’s non-appearance was out of character or amiss: Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713. In those circumstances, and bearing in mind the object of the Tribunal to act quickly and justly, given the preconditions had been met it was entirely reasonable to proceed as it did and dismiss the application.
In relation to the Confirmation Decision, that decision was not a discretionary decision. It was the only decision open to the Tribunal in the circumstances of the case. Hence, it was not unreasonable for the Tribunal to do as it did.
The Tribunal has complied with the requirements of the Act and has acted within the limits of its power when determining this matter.
Conclusion
The Court is not satisfied that the applicant has discharged the onus of proving to this Court that the Tribunal has fallen into a jurisdictional error.
The Court has otherwise analysed the Tribunal’s decisions and is satisfied that there is no jurisdictional error.
The application, accordingly, will be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 2 September 2019
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