BYF16 v Minister for Immigration
[2019] FCCA 959
•11 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYF16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 959 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – visa application rejected by the Minister for Immigration and Border Protection – application for review dismissed for non-appearance pursuant to s.426A(1A)(b) of the Migration Act 1958 – application for judicial review – application for judicial review dismissed with costs. |
| Legislation: Migration Act 1958, ss.424A, 425, 425A, 426A(1A), 441A, 441C Migration Regulations 1994, reg.2.55(8) |
| Sainju v Minister for Immigration and Citizenship and Another [2010] FCA 461 |
| First Applicant: | BYF16 |
| Second Applicant: | BYG16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1569 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 3 April 2019 |
| Date of Last Submission: | 3 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 11 April 2019 |
REPRESENTATION
| Advocate for the First Applicant: | In person |
| Solicitors for the First Applicant: | None |
| Advocate for the Second Applicant: | In person |
| Solicitors for the Second Applicant: | None |
| Advocate for the First Respondent: | Ms Ward |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers | |
| Advocate for the Second Respondent: | None | |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
The application filed on 22 July 2016 be dismissed.
The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1569 of 2016
| BYF16 |
First Applicant
And
| BYG16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 27 June 2016 and confirmed on 12 July 2016. The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicants a protection (Class XA) visa (‘the visa’).
Factual Background
The Second Applicant is the son of the First Applicant. Both Applicants are Malaysian nationals who first arrived in Australia in February 2011 as holders of visitor visas.
The First Applicant applied for the visa on 4 September 2014. The Second Applicant was included in the visa application as a member of a family unit.
The Applicants did not attend an interview with the delegate. On 4 December 2014, the delegate of the Minister refused to grant the Applicants the visa.
On 12 January 2015, the Applicants lodged their application for review with the Tribunal. A copy of the delegate’s decision was provided with the review application. In their application to the Tribunal, both of the Applicants listed their email address as ‘[email protected]’ and their address as ‘PO Box 933, Central Plaza, Mildura VIC 3501’. No telephone numbers were included within the application.
On 20 May 2016, the Tribunal emailed the Applicants at their nominated email address. The Applicants were invited to attend a hearing before the Tribunal on 24 June 2016 at 9am.
The Applicants did not attend the hearing before the Tribunal.
On 27 June 2016, the Tribunal dismissed the application pursuant to section 426A(1A)(b) of the Migration Act 1958 (‘the Act’).
The Tribunal decision of 27 June 2016 is in the following terms:
‘The applicants were invited, under s.425 of the Migration Act 1958 (the Act) to appear before the Tribunal on 24 June 2016, 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.’
Following the decision above, the Tribunal wrote to the Applicants on 27 June 2016. The letter was sent to the email address noted above, as it appeared on the application for review. The letter attached a copy of the Tribunal’s decision, noted the Applicant’s failure to attend the scheduled hearing and informed the Applicants that they could apply to reinstate the application by 11 July 2016.
Case notes of the Tribunal were placed in evidence in the Court Book. It appears from these notes that the email notifying the Applicants of the decision to dismiss their application was not successfully transmitted. The Applicants were therefore also notified of the decision to dismiss the application by post. The Tribunal’s notes of 28 June 2016 disclose the following (Court Book 84):
‘Copy of notification of decision to dismiss the application and non-appearance decision sent to the RA’s nominated postal address on 28.06.16 as the e-mail we attempted to send failed.’
The Applicants did not apply to reinstate their application.
On 12 July 2016, 14 days after the application was dismissed, the Tribunal confirmed the decision to dismiss the application (‘Confirmation Decision’). The Confirmation Decision is in the following terms:
‘1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 4 December 2014 to refuse to grant the visa applicants protection visas under the Migration Act 1958 (the Act).
2. On 27 June 2016 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The applicants were 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). Notification was sent to the applicant’s email address. Email delivery to this email address failed, and the Tribunal was advised that the email was undeliverable. The Tribunal is satisfied that the applicants were correctly notified but decided to also send the dismissal decision to the applicant’s nominated postal address. This decision was sent by post on 28 June 2016. The applicants were advised that reinstatement of the application could be sought within the 14 days of notification of the dismissal, i.e. 11 July 2016, and that a failure to apply for reinstatement within this period would result in confirmation of the dismissal decision.
4. As the applicants did not apply for reinstatement of the application within 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decisions under review are taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the applications.’
It appears that the Confirmation Decision was also not successfully transmitted by the Tribunal to the Applicants by email. The Confirmation Decision was therefore also posted by the Tribunal to the Applicants. In respect of this matter, the case notes of the Tribunal for 12 July 2016 disclose the following (Court Book 84):
‘Notification of decision to dismiss the application and decision record sent by email to applicant’s email address ([email protected]), however the delivery failed.
I note that the acknowledgement of application and hearing invitation were sent by email to the applicant at the same email address noted above, however it appears that the delivery of those emails were successful as the tribunal did not receive delivery failure notices.
The applicant did not provide a contact telephone number in her application for review, therefore I have decided to send a courtesy copy of the notification of decision to dismiss the application and decision record to the applicant’s last known address:
PO BOX 933
CENTRAL PLAZA
MILDURA VIC 3501’
Application for Review
The Applicants subsequently filed their application in this Court and affidavit in support on 22 July 2016.
The Applicants’ address for service on the application is listed as ‘PO Box 10345, Mildura Post Shop, Mildura VIC 3502’. The email address listed on the application is [email protected].
Orders were subsequently made by Registrar Allaway on 18 January 2017, which provided, among other things, that:
a)the matter be listed for a final hearing before Judge Wilson of this Court, as he then was, on a date to be advised;
b)the Minister file and serve a court book by 4pm on 1 February 2017;
c)the Applicants file and serve, 28 days before the final hearing, any amended application with proper particulars of the grounds of the application, any affidavits and a supplementary court book, if any; and
d)the Minister file and serve, 14 days before the final hearing, any written submissions.
A notice of listing was sent via email to the Applicants and to the Minister’s representatives on 13 February 2019, listing this matter before me for final hearing.
The Applicants did not file any further submissions or material as contemplated by the orders of the Court. The Minister filed written submissions on 20 March 2019.
At the hearing before me on 3 April 2019, the Applicants both appeared in person. They were aided by an interpreter. I confirmed with the Applicants the following matters:
a)First, that they were each happy with and understood the interpreter; and
b)Second, that they had each seen and been served with copies of the Court Book, the supplementary Court Book and the Minister’s submissions.
In addition to the above, I explained the process of the hearing to the Applicants and invited them to address any questions of process to me.
The application filed by the Applicants contains two grounds of review. The first ground of review is as follows:
‘The Second Respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal. On account of the mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty. By consequences Tribunal decision is not a decision at all in law.’ (sic)
The second ground of review is as follows:
‘My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A.’ (sic)
During the course of proceedings, I asked each of the Applicants what they wished to say to me as to why the Tribunal decision was wrong. To assist the Applicants, I read to them both of the grounds of review. Both Applicants agreed that what I had read to them was the basis of their application. Neither Applicant advanced any other argument as to why the Tribunal decision was wrong.
In submissions in reply, however, the First Applicant indicated from the bar table that she had gone to the Department to try and update her email address, and she was told it was updated but that the updated email was not correct. She also said that she wanted to remain in Australia and not go back to Malaysia, because ‘the economy in Malaysia is really messy’ and ‘the local people treat [the Applicants] badly’. [1] The Second Applicant did not make any additional submission, but adopted the submission made by the First Applicant.
[1] Tr.p.14,l.19-20
Determination
This matter concerns the decision made by the Tribunal to dismiss the application to review the decision of the delegate. The Tribunal member dismissed the application because the Applicants did not attend the hearing. What is at issue is whether there is any error in the approach that was ultimately adopted by the Tribunal.
Section 425A and section 441A of the Act together prescribe the means by which the Tribunal is to give documents to a person. Relevantly, section 441A(5) of the Act provides that a member or an officer of the Tribunal may transmit a document by email to the last email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review.
It is also important that regard be had to section 441C of the Act. Section 441C deems when a person (other than the Secretary) is taken to have received a document from the Tribunal. Relevantly, section 441C(5) of the Act is in the following terms:
‘If the Tribunal gives a document to a person by the method in subsection 441A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted’.
The Minister took me to the decision of Sainju v Minister for Immigration and Citizenship and Another [2010] FCA 461 (‘Sainju’). That decision concerned when documents sent by the Tribunal are taken to have been received by a party. The decision concerned the proper construction of Regulation 2.55(8) to the then Migration Regulations 1994. The provisions in those regulations relating to the Tribunal sending documents by electronic means, and the deeming provisions relating to when such documents are taken to have been received, are in materially the same terms as section 441A(5) and section 441C(5) of the Act. At paragraphs [52] and [54] in Sainju, the Federal Court stated as follows:
‘[52] The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.
…
[54] The same assumption is made in the deeming provision which deals with electronic communications. Thus, an email is taken to be received at the end of the day on which the Minister transmits, or sends it, to the addressee.’
In this matter, the Tribunal properly invited the Applicants to attend the hearing on 27 June 2016. The hearing invitation sent on 20 May 2016 complied with the requirements in sections 425 and 425A(1)-(4) of the Act. That is, the Tribunal gave the Applicants notice of the day, time and place of the scheduled hearing, the notice was transmitted to the last email address that the Applicants had provided to the Tribunal, the period of notice given was more than the prescribed period and the notice contained a statement to the effect of section 426A of the Act. By virtue of section 441C(5) of the Act, the invitation to the hearing was taken to have been received at the end of the day on which the document was transmitted.
Although it seems unnecessary to do so given the operation of section 441C(5) of the Act, I find that the Applicants did receive notification of the hearing before the Tribunal. The email was sent to their nominated email address. The Tribunal was not notified of any failure in respect of this transmission. There is no other evidence to suggest that the email was not sent or received.
We then come to the communications from the Tribunal relating to the decision to dismiss the application on 27 June 2016 and the Confirmation Decision. Both documents were sent to the email address provided by the Applicants. As such, and by virtue of section 441C(5), those documents may be taken to have been received by the Applicants at the end of the day on which they were transmitted.
The Tribunal took the additional step of posting the documents to the Applicants when it appeared that the email did not transmit. This was the appropriate course to take in circumstances where the Tribunal was on notice that there may be a problem with the transmission of the email. There was no other step the Tribunal could have taken given the Applicant’s failure to supply a phone number. This is clearly not a case where the Tribunal was required to take any other extra steps to contact the Applicants by other means.
By posting to the Applicants the decision to dismiss the application and the Confirmation Decision, Section 441C(4) of the Act is enlivened. This section provides, relevantly, that a person is taken to have received a document posted to him or her seven working days after the date of the document. On this basis, I find that the Applicants received both the decision to dismiss the application and the Confirmation Decision.
Contrary to any suggestion from the Applicants, the Tribunal was not required to put information about the Applicants’ own non-attendance at the scheduled hearing to the Applicants for comment, pursuant to section 424A(1) of the Act, as it did not constitute information for the purposes of that section. To the extent that the allegation is that the Tribunal acted unreasonably in proceeding to dismiss the application when the Applicants failed to appear at the hearing without seeking to further contact them, the First Respondent submits that this plainly cannot succeed. I agree with that submission.
The Applicants raised two other issues. Within their application, they complain of a mistake made by a third party. At the hearing, they also asserted an attempt to alter or change their contact details with the Department. I deal with each of these matters below.
In relation to the complaint that a mistake was made by a third party, the Applicants did not put any evidence before me in relation to this matter. The third party was not identified. The nature of the mistake was not identified. The particulars of the mistake were not identified. I therefore find that there was not a mistake by any third party.
The Applicants then asserted that they attempted to alter or change their contact details with the Department. Again, no particulars are provided in relation to this. I am therefore satisfied that this did not occur. However, if particulars or other evidence could have been provided, it does not address the fact that any change of address details would need to have been supplied to the Tribunal as the body responsible for hearing the matter, and not the Department. Alerting the Department of any change of address would not have changed the outcome.
It follows from what I have said above that the Applicants have not demonstrated any jurisdictional error on behalf of the Tribunal. The application is therefore dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Blake
Date: 11 April 2019
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