CAO24 v Minister for Immigration and Multicultural Affairs

Case •

[2024] FedCFamC2G 1437

•

29 November 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CAO24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1437

File number: PEG 131 of 2024
Judgment of: JUDGE KENDALL
Date of judgment: 29 November 2024
Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – allegation of agent misconduct and/or fraud on the Tribunal raised at first hearing before this Court – applicant given an opportunity to produce evidence in relation to the agent’s alleged misconduct – matter listed for a further hearing in relation to the allegation of fraud – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Legislation:

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 and 25 in Schedule 16

Migration Act 1958 (Cth), ss 426 & 476

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)

Cases cited:

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

Craig v State of South Australia (1995) 184 CLR 163

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZKRT [2013] FCA 317

Minister for Immigration & Citizenship v SZMDS [2010] HCA 16

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration & Border Protection v Singh [2014] FCAFC 1

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146
Division: Division 2 General Federal Law
Number of paragraphs: 56
Date of hearing: 29 November 2024
Place: Perth
Applicant: No appearance by or on behalf of the applicant
Counsel for the First Respondent: Ms M Scott
Second Respondent: Submitting appearance, save as to costs
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

PEG 131 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CAO24

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

29 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

2.The applicant pay the first respondent’s costs, fixed in the sum of $6,200.

3.Written reasons for judgment will be published from Chambers at a later date.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE KENDALL:

INTRODUCTION

  1. This matter was initially listed for a hearing before this Court on 24 October 2024.  For the reasons set out below, that initial hearing was adjourned so that the applicant might produce further evidence. 

  2. A second hearing was listed for 1.30pm on 29 November 2024.

  3. When the matter was called, there was no appearance by or on behalf of the applicant.

  4. In the circumstances, the Court made the following orders:

    1.The application is dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

    2.        The applicant pay the first respondent’s costs, fixed in the sum of $6,200.

    3.        Written reasons for judgment will be published from Chambers at a later date.

  5. These reasons for judgment are those referred to in order 3 above. They explain why the Court dismissed the matter for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”).

    BACKGROUND

    Recent amendments to the Migration Act 1958 (Cth)

  6. The Migration Act 1958 (Cth) (the “Act”) was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).

  7. This judgment relates to two decisions of the then Administrative Appeals Tribunal (the “Tribunal”). Those decisions are dated 7 March 2024 and 26 March 2024 and thus both predate those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decisions (or as at the date of any relevant matter referenced in this judgment).

  8. The Tribunal was initially listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, proceedings will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.

  9. In the circumstances, the Court made an order substituting the ART as the second respondent in this proceeding (on 24 October 2024).

    Applicant’s migration history

  10. The applicant in this matter is a citizen of Malaysia (Court Book (“CB”) 14 & 36-40). He first arrived in Australia in February 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 41 & 61).

  11. On 26 August 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 14-35 & 61). In that visa application, the applicant claimed to fear harm on the basis that he had a “huge amount of debt with [a] money lender and some friends” and was being “threatened” by the “money lender gangster” who was preventing him from being able “to find a decent job”. The applicant also claimed to have been “abused physically and mentally several times by that money lender. The applicant claimed that if he returned to Malaysia, he would be beaten by the money lender or forced to “do illegal work such as drug trafficking and prostitution” and that he “might be killed” (CB 28-30).

  12. On 12 September 2017, the then Department of Immigration and Border Protection (the “Department”) acknowledged receipt of the applicant’s visa application (CB 47-55).

  13. On 4 December 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 61-69).

  14. On 21 December 2017, the applicant sought review of the delegate’s decision at the Tribunal (CB 70-71).

  15. On 14 March 2023, the Tribunal invited the applicant (via email) to provide information and sent the applicant an “Applicant information form (s.424(2) response)” document to complete (the “information form”).

  16. On 28 March 2023, the applicant provided the Tribunal with a completed information form (via email) (CB 80-86).

  17. On 19 February 2024 (at 1.56pm), the Tribunal invited the applicant (via email) to attend a hearing before it (scheduled at 9.30am on 6 March 2024) to give evidence and present arguments in support of his review application (CB 88-99).

  18. Later that same day (on 19 February 2024 at 7.13pm), the Tribunal advised the applicant that the hearing (scheduled to take place on 6 March 2024) would commence at 10.00am (CB 100).

  19. On 28 February 2024, the Tribunal wrote to the applicant asking him to “complete and return the Hearing Response form” to it as soon as possible (CB 101).

  20. On 6 March 2024, the applicant failed to appear at the scheduled Tribunal hearing (CB 102-105).

  21. On 7 March 2024, the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Act (the “Non-Appearance Decision”) (CB 109-110).

  22. The applicant was notified of that decision (and advised of his right to apply for reinstatement) by letter sent that same day via email (being on 7 March 2024) (CB 106-108). That letter relevantly stated (CB 107):

    On 19 February 2024 we sent a letter inviting you to attend a hearing on 6 March 2024 to give evidence and present arguments relating to the issues arising in your case.

    As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.

    A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.

    You may apply to us, in writing, for reinstatement of the application by 21 March 2024. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

  23. Attached to the Tribunal’s correspondence was an information sheet which also included detailed information about how the applicant could seek reinstatement of his application (CB 111-112).

  24. The applicant did not seek reinstatement (CB 116).

  25. On 26 March 2024, the Tribunal confirmed the Non-Appearance Decision made on 7 March 2024 (the “Confirmation Decision”) (CB 115-116). By virtue of s 426A(1F) of the Act, the delegate’s decision was taken to be affirmed.

  26. On 17 April 2024, the applicant applied to this Court for judicial review of the Tribunal’s Confirmation Decision (CB 1-8).

    APPLICATION TO THIS COURT

  27. The application before this Court seeks review of the Tribunal’s Confirmation Decision pursuant to s 476 of the Act.

  28. The application for judicial review filed by the applicant on 17 April 2024 contained three grounds of review as follows (without alteration) (CB 4-5):

    1.I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant faced harm from illegal debt collectors because I was borrowed money from “loan shark”. My family and I shall facing harm from illegal debt colletors if found that I return to Malaysia. If I have return to Malaysia may face harm or kill by illegal debt collectors, because local authorities cannot help or protect me for 24 hours. The threat is real and significant, which would cause a fatal influence on me. Therefore, I would like to apply for protection in Australia. However, the case officer failed to investigate the applicant’s claims by misconstruing the details as set out in s36(2)(a), s36(2C), s36(3), s5H(1) of the Act and Schedule 2 to the Migration Regulations 1994. The officer erroneously construed the existence of the risk of life or significant harm to the applicants upon their return to Malaysia.

    2.I believe that the AAT case officer made a jurisdiction error by affirming the decision not to grant the applicant a protection visa. The AAT case officer failed to consider my claim or integer of a claim and made an unreasonable decision.

    3.I seek for my claims to be given a second chance for me to provide more details to strighter my claims but not just to concern. 

  29. The applicant filed an affidavit with that judicial review application annexing a copy of the Tribunal’s Confirmation Decision. The applicant’s affidavit also repeated the grounds of review (outlined above).

  30. On 27 June 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant prior to the first hearing of this matter (on 24 October 2024).

  31. The materials before the Court (at the time of the first hearing) included the application for judicial review and supporting affidavit filed by the applicant on 17 April 2024 (with the applicant’s affidavit being taken as read and in evidence at that first hearing), a Court Book numbering 118 pages (marked as Exhibit 1 at that first hearing) and written submissions filed on behalf of the Minister on 30 September 2024.

    The first hearing

  32. The applicant appeared at that first hearing in this matter on 24 October 2024.  He did so without legal representation but with the assistance of a Mandarin interpreter. Ms Maggie Woollett (“Ms Woollett”) from the Australian Government Solicitor (“AGS”) appeared at the first hearing on behalf of the Minister.

  33. At that first hearing the Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.

  34. The Court noted that the applicant had not sought review of the Non-Appearance Decision. Rather, he had only asked for a review of the Confirmation Decision. The Court explained to the applicant why this was an issue and made an order amending the application for judicial review to include seeking the review of the Non-Appearance Decision.

  35. Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.

  36. The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decisions. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but 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 follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];

    (e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];

    (f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

    (g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].

  37. The Court also explained that it cannot undertake a merits review of the Tribunal’s decisions: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.

  38. Against this background, the applicant told the Court that he had not realised that the Tribunal was important for him and his agent told him that he “did not have to attend that interview”. The Court noted that the documents before it did not indicate that the applicant had had an agent assisting him and asked the applicant who had assisted him.  The applicant told the Court that “a friend helped him to find the agent” and he “did not know English”. The applicant later clarified that “the wife of a friend” had given the application to an agent “to do everything”.

  39. The Court determined that the applicant appeared to suggest fraud on the part of a migration agent. Noting the comments made by the Full Federal Court in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146), the Court explained to the applicant that the hearing would be adjourned to 29 November 2024 at 1.30pm (the “second hearing”) to allow him time to file any further evidence he wished to put forward and written submissions in relation to his agent’s alleged conduct. The Court also explained the importance of providing as much evidence to the Court as possible in relation to that alleged conduct and explained how the applicant could provide that evidence to the Court (noting that the Court would be as flexible as possible in that regard).

  40. The Court made orders as follows:

    1.The application for judicial review filed by the applicant on 17 April 2024 be amended to include seeking review of the Non-Appearance Decision of the second respondent dated 7 March 2024.

    2.The applicant be granted an extension of time to 17 April 2024, pursuant to s 477(2) of the Migration Act 1958 (Cth), within which to apply for review of the Non-Appearance Decision.

    3.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.

    4.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.

    5.The applicant have leave to file further evidence, including affidavit evidence, and written submissions in relation to the alleged fraudulent conduct of his migration agent (or any other person) by 7 November 2024.

    6.The first respondent have leave to file any evidence in reply and any further written submissions by 15 November 2024.

    7.        The hearing be adjourned to 29 November 2024 at 1.30pm.

    8.        Costs in relation to the adjournment be reserved. 

  41. On 24 October 2024, the parties were provided with a copy of these orders and again notified of the second hearing date (being 29 November 2024 at 1.30pm).

  42. Unfortunately, no further materials were filed by or on behalf of the applicant.

  43. On 15 November 2024, supplementary written submissions were filed on behalf of the Minister.

  44. On 28 November 2024, the parties were reminded of the hearing date and time and provided with instructions for an “in person” attendance at the Perth Registry of the Court.

  45. On 29 November 2024 (at 7.17am), Ms Woollett from AGS sent an email to the Court annexing correspondence from their offices to the applicant. That correspondence put the applicant on notice that, should he not appear at the second hearing, the Minister might seek to have the matter dismissed with costs.

    The second hearing

  46. As outlined above, when the matter came before this Court on 29 November 2024, there was no appearance by or on behalf of the applicant. The Court had the matter called outside of the court room three times.

  1. Ms Madisen Scott (“Ms Scott”) from AGS appeared at the second hearing on behalf of the Minister.

  2. The Court confirmed that it had before it the correspondence from my chambers to the parties referenced above.  That correspondence was tendered (together) and referenced as Exhibit 2.

  3. The Court also confirmed that it had before it correspondence from Ms Woollett to the Court (with attachments – as referenced above). That correspondence was tendered and referenced as Exhibit 3.

  4. The Court also confirmed that it had before it an affidavit of service of Ms Natalie Kim Dawson (affirmed and filed on 15 November 2024 (the “Dawson affidavit”)). The material annexed to that affidavit reminded the applicant of the second hearing date and the orders made by the Court allowing him to file affidavit evidence and written submissions. The Dawson affidavit was taken as read and in evidence.

  5. The Court asked Ms Scott how the Minister wished to proceed.

  6. Ms Scott advised the Court that the Minister sought to have the matter dismissed on the basis of the applicant’s non-appearance (pursuant to r 13.06(1)(c) of the Rules). Ms Scott also sought the Minister’s costs, fixed in the sum of $6,200.

  7. Noting the correspondence contained in Exhibits 2 and 3 and the Dawson affidavit, the Court was satisfied that the applicant had been properly notified of the second hearing date and time.  He was also advised of how he could appear at that hearing and the possible cost consequences of failing to attend.

  8. In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances. Both sets of the Minister’s written submissions were detailed and Ms Scott was prepared to make oral submissions as required by the Court (at the second hearing).

    CONCLUSION

  9. In the circumstances, the Court made orders to dismiss the matter for non-appearance and awarded costs to the Minister, as outlined at [4] above.

  10. The Court notes that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       23 December 2024

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