Cad17 v Minister for Immigration
[2018] FCCA 760
•15 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAD17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 760 |
| Catchwords: MIGRATION – Default of the Applicant in compliance with Court Orders – unparticularised Grounds of Review – no relevant detail of alleged errors on the part of the AAT – leave granted to Applicant to file and or to particularise Grounds of Review – no such detail provided – Application dismissed. |
| Legislation: Migration Act 1958 (Cth) Federal Circuit Court of Australia Rules 2001 (Cth), rr.13.03A, 13.03B |
| Applicant: | CAD17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 37 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 15 November 2017 |
| Date of Last Submission: | 15 November 2017 |
| Delivered at: | Canberra |
| Oral Reasons Delivered on: | 15 November 2017 |
| Written Reasons provided on: | 27 March 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondents: | Clayton Utz |
ON A FINAL BASIS, THE COURT ORDERS THAT:
The Application filed on 10 May 2017 be dismissed.
The Applicant is to pay the Respondent’s costs as per Schedule 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 37 of 2017
| CAD17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 15th November 2017, the Court delivered ex tempore reasons in support of Orders made on that date dismissing the Applicant’s review Application and ordering the Applicant to pay the First Respondent Minister’s costs in accordance with Schedule 1, Part 3 of the Federal Circuit Court Rules 2001. Following a request for written reasons pursuant to the Applicant seeking an extension of time in order to proceed, if successful, to appeal [out of time from] this Court’s decision, what follows are the reasons from 15th November 2017 revised from the transcript.
On 10th May 2017 the Applicant filed an Application seeking review of a decision of the Administrative Appeals Tribunal (“the Tribunal” or “the AAT”), dated 11th April 2017,[1] and confirmed on 9th May 2017.[2] The Tribunal dismissed the review Application.
[1] That decision is at Court Book 96-98. Hereafter “CB” followed by the relevant page number.
[2] CB 102.
The Tribunal had invited the Applicant to appear before it at a Hearing scheduled on 11th April 2017.[3] SMS reminders were sent to the Applicant’s mobile phone number on 4th and 10th April 2017, from the Tribunal.[4] The Applicant did not appear at the Hearing.[5]
[3] CB 84-85.
[4] CB 94-95.
[5] CB 96 - 98.
The Tribunal advised the Applicant on 11th April 2017 of its decision to dismiss the Application, and advised further that the Applicant had until 8th May 2017 to apply for a reinstatement of his Application.[6] The Applicant did not apply for a reinstatement.
[6] CB 99.
On 9th May 2017, the Tribunal wrote to the Applicant confirming its decision to dismiss the Application.[7]
[7] CB 102.
The Application in this Court was filed on 10th May 2017.
The Tribunal’s decision
The Tribunal’s understandably brief decision is set out in the Court Book (at p.107). Relevantly, at par.2 of that decision, the Tribunal stated that the Applicant did not appear at the Tribunal’s hearing of his Application. And at pars. 3 and 4 of its decision, the Tribunal recorded the notice given to the Applicant of his right to seek reinstatement of his Application, and further that no such reinstatement was sought.
Grounds of Review
The Applicant filed an Application on 10th May 2017, seeking review of the Tribunal’s dismissal decision. Of some moment is the fact that the Application for Review does not seek review of the subsequent confirmation decision made on 9th May 2017, despite the Minister writing to the Applicant on 9th August 2017 inviting an amendment of the Application in this regard.
The only ground listed on the Application was as follows.
The Application [is]effected by an error of law.
The Applicant’s Affidavit filed on 10th May 2017 solely deposed that:
My Application was decided without proof.
Applicant’s Submissions
The Applicant did not file submissions, contrary to filing directions pursuant to Orders made on 17th July 2017.
Respondent’s Submissions
The Respondent’s submissions, filed 7th November 2017, were as follows:
1) There is before the Court an application under s.476(1) of the Migration Act 1958 (Cth) (Act) for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), affirming a decision of a delegate of the Minister (Delegate) to refuse to the Applicant a Protection (Class XA) visa (protection visa) under s.65 of the Act.
2) These submissions are filed by the Minister in accordance with the orders of the Court made on 17 July 2017. Those orders provided the Applicant with an opportunity to file and serve any amended application or affidavit containing additional evidence by 28 August 2017. The Applicant has not filed an amended application or further affidavit. The Applicant was also ordered to file written submissions by 1 November 2017. He has not done so. Accordingly, these submissions respond to the grounds pleaded in the application filed on 10 May 2017.
3) The Minister respectfully submits that those grounds do not establish jurisdictional error. For the reasons that follow, the application ought to be dismissed with costs.
Background
4) The Applicant is a Malaysian national. On 10 February 2016, he applied for a protection visa: Court Book (CB), 1-32. In his application form, the Applicant claimed that he was treated unfairly by his step-brothers in Malaysia and claimed that he was treated 'like a slave': CB, 20. He did not provide any substantive documents or evidence in support of his claims, which were brief and stated in general terms. On 4 May 2016, the Delegate refused to grant the protection visa: CB, 50-59.
5) The Applicant applied to the Tribunal for review of the Delegate's decision on 25 May 2016: CB, 60-66. On 8 March 2017, the Tribunal invited the Applicant to appear before it at a hearing on 11 April 2017: CB, 84-85.
6) On 4 and 10 April 2017, the Tribunal sent SMS hearing reminders to the Applicant's mobile phone number: CB, 94-95.
7) The Applicant did not attend the scheduled hearing on 11 April 2017: CB, 96-98. Later that day, the Tribunal wrote to the Applicant, notifying him of its decision to dismiss the application pursuant to s 426A(1A)(b) of the Act and that he had until 8 May 2017 to apply for a reinstatement of the application (dismissal decision): CB, 99.
8) The Applicant did not apply for reinstatement. On 9 May 2017, the Tribunal wrote to the Applicant confirming its decision to dismiss the application pursuant to s426A(1E) of the Act (confirmation decision): CB, 102. In confirming its decision to dismiss the application without further consideration of the claims, the Tribunal:
a)summarised the procedural background, including that the Applicant was notified of the dismissal decision in accordance with s 426B(5) of the Act;
b) noted that the Applicant had not applied for reinstatement of the application within the 14 day period and accordingly, confirmed the decision to dismiss the application; and
c) noted that under these circumstances, a dismissal confirmation is taken to be an affirmation of the Delegate's decision under review: CB, 107.
9) On 10 May 2017, the Applicant commenced the current proceedings (Application for review).
Application for review
10) The Applicant pleads one unparticularised ground of review namely that the “application [is] effected by an error of law” (sic). The Applicant has also stated in his affidavit of 27 April 2017 that his application was “decided without proof”.
11) Notably, the Application for review only seeks review of the Tribunal's dismissal decision. It does not seek review of the Tribunal's subsequent confirmation decision made on 9 May 2017.
12) On 9 August 2017, the Minister wrote to the Applicant notifying him of this and invited him to amend his application such that he sought judicial review of both the dismissal and confirmation decisions (Attachment A). The Applicant has not done so.
Disposition
13) It is difficult for the Minister to meaningfully engage with anything contained in the Application for review or the Applicant's affidavit. As such, the focus must be on the actual issue raised by the Tribunal's dismissal and confirmation decisions. That issue is whether the Tribunal's decision to dismiss the application for non-appearance accorded with the applicable statutory provisions.
14) The Minister submits that the Tribunal complied with s 426A(1A)(b) in its dismissal decision. Such compliance is demonstrated by the fact that the Tribunal properly invited the Applicant to attend the hearing: CB, 84-85 and 93. This satisfied its obligations under s 425, 425A and 441A of the Act and regulation 4.35D of the Migration Regulations 1994 (Cth). In this case, the Tribunal invited the Applicant to attend the hearing by way of post sent to the applicant's residential address in Griffith, ACT which was the address for service provided by the Applicant in his application for review form: CB, 71 and 93, and provided at least 14 days' notice between receipt of the invitation and the hearing date: CB, 84-85.
15) Upon the Applicant's default in not appearing at the scheduled hearing (and not providing any satisfactory reason for not appearing), it was open to the Tribunal to proceed under s 426A(1A)(b) and dismiss the application without considering the merits of the claim. The Tribunal then complied with the requirements of s 426B of the Act by notifying the Applicant of its decision to dismiss the application and informing him of his right to apply for reinstatement within 14 days: CB, 100.
16) The Applicant did not request a reinstatement of the application at any stage either during or after the 14 day period stated in s 426A(1B). In these circumstances, the confirmation decision:
was a necessary consequence of the applicant's failure to seek reinstatement of his application. The Tribunal has no discretion in the matter where an applicant fails to exercise that option. There being no error in the Dismissal Decision and in the absence of any application for reinstatement, there is no error in the confirmation decision.”
17) Judge Driver's reasoning in AYT16 above supports, in the present case, a conclusion that the resulting confirmation decision is a foregone conclusion, perhaps automatic, once an Applicant fails to apply for reinstatement within 14 days and where the initial decision to dismiss the application for non-appearance was procedurally sound.
18) This view is clearly reflective of the text of s 426(1E), which provides:
(1E) If the 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 under section 430.
19) In the circumstances of this matter, there is no error in the dismissal decision nor, in the absence of any application for reinstatement, the confirmation decision by the Tribunal. The Application for review cannot succeed.
Section 438 Certificate
20) The Minister notes that the Tribunal was notified by the Department that s 438(1)(a) of the Act applies to certain information on departmental file CLF2016/10972: CB, 69. This case does not give rise to the type of error identified in Singh v MIBP (2016) 244 FCR 305; [2016] FCAFC 183: see [40], [16] & [18]. Having regard to the nature of the Tribunal’s decisions there is no doubt that the documents the subject of the certificate were not relevant to the Tribunal’s decisions.
Orders sought
21) The application should be dismissed with costs fixed in the amount of $7,206, pursuant to Item 3 of Part 3, Division 1 of Schedule 1 of the Federal Circuit Court Rules 2001
Consideration and disposition
In both the primary Application, and accompanying Affidavit, filed on 10th May 2017, there are no details of the errors alleged to have been committed in relation to either the 11th April 2017 decision or the 10th May 2017 confirmation. Of particular note is the fact that the Applicant was given an opportunity to file an Amended Application to correct or to provide relevant detail that was lacking in his original Application. He did not take this opportunity.
Procedurally and substantively, neither the First Respondent Minister, nor the Court, has any relevant idea (beyond mere assertion of error), let alone detail of the grounds or [legal] bases upon which the Applicant seeks to have this Court review the decision of the Tribunal.
Further, the Applicant failed to file any submissions pursuant to Orders made on 17th July 2017.
In relation to the Applicant’s failure to comply with Court Orders, I note that Rules 13.03A and 13.03B of the Federal Circuit Court Rules 2001 relevantly provide as follows:
13.03A When a party is in default
For rule 13.03B, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
13.03B Orders on default
If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
In the event, neither the First Respondent, nor the Court on its own motion, formally sought to invoke the operation of either of these Rules, notwithstanding the Applicant’s non-compliance with the Court’s Orders as outlined earlier in these reasons.
At the Hearing, the Applicant was assisted by an Interpreter. The Applicant did not raise any further grounds of review (other than as set out in his Application), or make any submissions in relation to particularising the alleged errors.[8]
[8] T 3 – 4. For completeness and ease of reference, the Transcript of the hearing before this Court is attached to these reasons, at “Annexure A”.
In my view, given the lack of relevant particularity of the ground(s) of review stated by the Applicant, it is plain that the Application has no reasonable prospect of success. It is impossible for the Court (or the First Respondent) to discern or otherwise to know what the alleged error (legal or otherwise) is in the Tribunal’s decision. Moreover, given that he did not even attend the hearing before the Tribunal, it is difficult to conceive of any ground he could raise that would assist him either before the Tribunal or before this Court in an Application to review the Tribunal’s decision. Respectfully, the Application has been a waste of the Court’s public resources, as much as it undoubtedly has of those of the First Respondent’s lawyers.
I accept and otherwise adopt the submissions of the First Respondent.
For the reasons given, all outstanding Applications are dismissed and the Applicant is to pay the Respondent’s costs as per Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 27 March 2018
“Annexure A”
HIS HONOUR: Mr Gell
MR GELL: Yes, your Honour.
HIS HONOUR: for the Minister. And the applicant is here in person. We need to call the interpreter. Mr Interpreter, good afternoon. This is Judge Neville speaking.
THE INTERPRETER: Good afternoon, your Honour.
HIS HONOUR: In court we have the applicant
THE INTERPRETER: Yes, sir.
HIS HONOUR: and Mr Gell who is the solicitor who is acting for the Minister.
THE INTERPRETER: Yes, sir.
HIS HONOUR: So, Mr Interpreter, could I trouble you firstly to introduce yourself to the applicant, please.
THE INTERPRETER: Sure. Okay.
HIS HONOUR: Thank you. So, Mr Interpreter, can I ask you to ask the applicant some questions, please.
THE INTERPRETER: Yes, sir.
HIS HONOUR: So – thank you. Firstly, he filed an application – an affidavit on 10 May this year. In the application, the only ground that he says is that the application was affected by an error of law, but he doesn’t say what the error of law is.
THE INTERPRETER: Your Honour, can you elaborate, please?
HIS HONOUR: I’m just simply going on what’s in the applicant’s documents. And then in his affidavit, he simply says that:
The application was decided without proofs.
THE INTERPRETER: Judge, can you elaborate on proof. What kind of proof, please?
HIS HONOUR: Well, what I’m going to do, Mr Interpreter, is that I’m going to hand these documents back to the applicant so he can read what he has written.
THE INTERPRETER: Okay, sir.
HIS HONOUR: So for the record I just simply note that the applicant is being shown the application that he filed and his affidavit and he is being taken to those parts of those documents by my associate. So, Mr Interpreter, can I ask you to ask the applicant, did he personally fill out these documents or did someone else fill them out for him?
THE INTERPRETER: Someone else, sir.
HIS HONOUR: Someone else did. I see.
THE INTERPRETER: Yes.
HIS HONOUR: Thank you, but am I right in assuming that the person who filled these documents out did so based upon what you have told that person; correct?
THE INTERPRETER: Correct.
HIS HONOUR: Right. So the second thing I wanted to raise with the applicant is that on 17 July this year, orders were made, firstly, setting the matter down for hearing today, and then secondly, setting out a timetable for both parties to file documents.
THE INTERPRETER: We are seeking lodge the application, sir, here or somewhere else.
HIS HONOUR: Thank you. And also on 17 July, as the orders of the court note, the applicant said that he intended to obtain legal advice, but it would appear that he hasn’t done so.
THE INTERPRETER: No, he hasn’t.
HIS HONOUR: Right, and also that the applicant hasn’t filed – in accordance with the July orders he hasn’t filed any amended application or any submissions that he was ordered to do so.
THE INTERPRETER: He doesn’t recall what kind of application he – he says nothing has been told me, so he doesn’t – he’s not aware of any kind of order, sir.
HIS HONOUR: Well, except that he was in court when the orders were made on 17 July, and that he should have received a copy of these orders.
THE INTERPRETER: Yes, sir, he says – he – okay. He says that, sir, just only he has document – a piece of document was given to him by the court and all he knows, there was a letter – hearing date set for today, 15 November, and nothing else. He’s not aware.
HIS HONOUR: No, I understand that. Was there anything else that he wanted to say because there is no – sorry, let me start again. Because he has not complied with the July orders and has not filed any documents that he was ordered to file, and because in the application that he has filed, it gives no detail, the very real risk that he faces is to have his application dismissed.
THE INTERPRETER: He says – he’s asking the reasons, sir, for the dismissal.
HIS HONOUR: I just gave him the reasons. I haven’t made the order yet. Because he hasn’t filed anything that the court ordered him to file plus his application doesn’t disclose any reason why his application should be granted; they’re the reasons.
THE INTERPRETER: He says, sir, which kind of – what application he is required to lodge – like to submit to the court – like to file to the court?
HIS HONOUR: We already had this discussion with the applicant back in July and I can’t really give him legal advice, especially since he told me back in July that he was going to get legal advice.
THE INTERPRETER: With regard to the legal advice, he is drawing your attention, your Honour, he says when I was asked do you need to – a lawyer and I said yes. Meanwhile, I said I don’t have money, I cannot hire a lawyer.
HIS HONOUR: I understand but there’s really not much that I can do on the basis of the material that has been filed. It doesn’t show me any error in the reasoning of the tribunal, amongst other things.
THE INTERPRETER: Okay, sir.
HIS HONOUR: Sorry, I missed that last part.
THE INTERPRETER: I said – he was listening. He says okay, sir.
HIS HONOUR: I see. Was there anything else that he wished to say?
THE INTERPRETER: He says that I didn’t understand quite well what shall I do in the future and what lies ahead of me and what is next.
HIS HONOUR: No, I understand all of those things. We all face that. Just in different circumstances. I understand.
THE INTERPRETER: Yes.
HIS HONOUR: So this is that last chance and third and last time that I will ask. Is there anything further that the applicant wishes to say?
THE INTERPRETER: No. He doesn’t want to say anything, meanwhile expressing his gratitude for allowing him – for giving him a chance to appear.
HIS HONOUR: Thank you very much. Was there anything – is there anything that you wish to say, Mr Gell? I don’t think that you really need to say very much.
MR GELL: Perhaps just one housekeeping issue is just the Minister’s preference would be for both decisions to be dismissed and judging from the application, it’s not clear whether the applicant has applied for a review of just the first confirmation – sorry, first dismissal decision and also review of the later.
HIS HONOUR: So both of the delegate and the tribunal?
MR GELL: No, no, sorry.
HIS HONOUR: Sorry. Of the
MR GELL: They’re both tribunal decisions but the 11 April initial dismissal decision and then the 9 May confirmation decision.
HIS HONOUR: I see. Yes.
MR GELL: That, just for efficiency. And even though they are separate decisions, that would be the Minister’s preference.
HIS HONOUR: Understand. Thank you. The court has – sorry. Mr Interpreter, what I’m going to do now is to give some very brief reasons and then I will pronounce the orders of the court. Understand?
THE INTERPRETER: Yes, sir. Yes, sir.
HIS HONOUR: And the applicant may be seated. Thank you.
JUDGMENT DELIVERED
THE INTERPRETER: Sorry, your Honour. He is asking – he needs clarification just to make it clear what kind of discussion is going on. And he is kind of confused
about the application that he has filed with the court because with regard to the reason he doesn’t know what kind of, like, mistakes, like, he should have indicated in his file. He doesn’t know that one.
HIS HONOUR: I understand that but we have already had this discussion and I can’t give him any legal advice and I don’t know what the error is that he says either the delegate or the tribunal or anyone else, what error is said to have been committed. I simply don’t know because it’s not in any documents that he has filed. And – sorry. And these are reasons. That they’re – that it’s not now possible and not appropriate for the applicant to be making comments on the way through.
THE INTERPRETER: Okay.
JUDGMENT DELIVERED
THE INTERPRETER: Yes, sir.
HIS HONOUR: No, no. Go on.
THE INTERPRETER: My apologies.
HIS HONOUR: No, no.
THE INTERPRETER: Please proceed.
JUDGMENT DELIVERED
THE INTERPRETER: Like, are you referring to the court fee, your Honour?
HIS HONOUR: The court costs have been ordered. Thank you, Mr Interpreter. We can let you go. The court will adjourn.
THE INTERPRETER: My pleasure. Thank you, sir. Have a lovely one. Bye bye. Thank you, sir. Thank you.
MATTER ADJOURNED at 3.04 pm INDEFINITELY
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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