CCC17 v Minister for Immigration

[2020] FCCA 1773

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCC17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1773

Catchwords:

MIGRATION – PRACTICE AND PROCEDURE – Application to set aside orders made in the absence of the applicant – whether applicant has given adequate explanation for non-appearance – whether application would have merits if the orders were set aside – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

Migration Act 1958 (Cth), ss.425(1), 425A, 426A, 426B, 438, 441A(5), 441C(5), 476

Cases cited:

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: CCC17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1503 of 2017

Judgment of: Judge Manousaridis

Hearing date: 30 June 2020

Date of Last Submission: 30 June 2020

Delivered at: Sydney

Delivered on: 3 July 2020

REPRESENTATION

Applicant in person, assisted by an interpreter, by telephone

Solicitor for the First Respondent: Mr A Downie of Minter Ellison Lawyers, by telephone

ORDERS

1. The application in a case filed by the applicant on 10 June 2020 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $1,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1503 of 2017

CCC17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 12 March 2020 I made an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) dismissing an application filed on 16 May 2017 for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made on 18 April 2017 by the second respondent (Tribunal). By that decision the Tribunal, acting under s.426A(1E) of the Act, confirmed a decision the Tribunal made on 29 March 2017 under s.426A(1A)(b) of the Act dismissing an application for review the applicant made to the Tribunal. The application for review related to a decision of a delegate of the first respondent (Minister) made on 4 April 2016 not to grant the applicant a Protection (subclass 866) visa (Protection visa).

2. In the application in a case the applicant seeks an order that the Tribunal’s decision be quashed, and that the applicant’s case be remitted to the Tribunal for reconsideration. The application in a case is supported by an affidavit in which the applicant states she was harmed in Malaysia, she “feared to return there”, and her statement is true. The application in a case does not, however, refer to the orders I made on 12 March 2020 dismissing the application. In those circumstances, I explored with the applicant, who appeared at the hearing before me by telephone without legal representation, but with the assistance of an interpreter, what it is she understood she intended to apply for by her application in a case.

3. The applicant displayed very little understanding of her application in a case, or of the documents that were filed by or on her behalf. The applicant stated on a number of occasions that she had used a lawyer; but apart from identifying the lawyer’s name – “Mr Yang” – the applicant was unable to provide details of the lawyer. There is nothing in the documents that have been filed by or on behalf of the applicant that indicates that a lawyer was involved in the preparation of the documents. That is not to say that a person without any legal qualifications or knowledge did not assist the applicant.

4. After some discussion, I was satisfied the applicant wanted me to set aside the orders I made on 12 March 2020. I explained to the applicant the matters a court takes into account when considering whether to set aside orders made in the absence of a party. I informed the applicant that the matters about which she should make submissions are the reasons she did not appear at the hearing of 12 March 2020, the reasons for her delay in filing her application in a case, and, assuming her application were to be reinstated, whether she had a reasonably arguable case for this Court setting aside the Tribunal’s decision.

5. I then identified the evidence I should consider. The applicant indicated she wanted to rely on all of the documents that had been filed by her or on her behalf. These consisted of the application, the application in a case, and two affidavits. The Minister tendered the court book, read an affidavit of Mr Soliola annexing an uncorrupted copy of the applicant’s application for review to the Tribunal; and tendered an email the Minister sent on 4 March 2020 to the email address of the applicant.

Background

1. The applicant is a citizen of Malaysia of Chinese ethnicity. She entered Australia on 29 June 2015 as the holder of a Visitor (subclass 601) visa. On 22 September 2015 the applicant lodged an application for a Protection visa.

2. By letter dated 25 September 2015 the delegate invited the applicant to attend an interview on 13 October 2015. The applicant did not attend and, on 4 April 2016, the delegate refused to grant the applicant a Protection visa.

3. On 7 May 2016 the applicant lodged an application with the Tribunal for review of the delegate’s decision. In her form of application, in the section headed “Correspondence details”, the applicant provided an email address (applicant’s email address). At the hearing before me the applicant said the email she there recorded was not her email address. The applicant accepted, however, that the application was her document. Whether the applicant’s email address was in fact the email address the applicant used is not relevant because there is no evidence that the applicant gave the Tribunal any other email address.

4. By letter dated 6 March 2017 sent to the applicant’s email address, the Tribunal invited the applicant to appear before it at 9.30 am on 29 March 2017. The invitation is that which s.425(1) of the Act required the Tribunal to give; the letter by which the Tribunal invited the applicant to appear before it contained a notice to the effect s.425A of the Act required the Tribunal to give to an applicant when inviting the applicant to appear before it to give evidence and present arguments; and the sending of the letter by email to the applicant’s email address was a method for the giving of documents which s.441A(5) of the Act permitted the Tribunal to use. The applicant did not appear before the Tribunal in response to the invitation.

5. The significance of these matters is that, on the applicant’s not having appeared before the Tribunal at the appointed time on 29 March 2017, there became available to the Tribunal the power to proceed in the manner permitted by s.426A of the Act. One of the ways the Tribunal could proceed was that provided for by s.426A(1A)(b) of the Act, namely, by the Tribunal making a written statement under s.426B dismissing the application “without any further consideration of the application or information before the Tribunal”.

6. The Tribunal decided to proceed in the manner provided for by s.426A(1A)(b) of the Act and, on 29 March 2017, the Tribunal decided to dismiss the application. As required by s.426B(2) of the Act, the Tribunal made a written statement setting out, among other things, its decision; and, as required by s.426B(5), on 30 March 2017 the Tribunal sent the record of decision to the applicant’s email address. Under s.441C(5) of the Act the applicant is taken to have received the written statement on 30 March 2017.

7. Under s.426A(1B) of the Act, the applicant was entitled to apply within 14 days after receiving notice of the Tribunal’s decision for reinstatement of her application. The applicant did not do so. That engaged s.426A(1E) of the Act, which required the Tribunal to confirm the decision it made on 29 March 2017 dismissing the application. That is what the Tribunal did, and it did so on 18 April 2017. As required by s.426B(2) of the Act the Tribunal made a written statement setting out, among other things, its decision confirming its decision of 29 March 2017 to dismiss the application for review; and on 19 April 2017 the Tribunal sent the statement to the applicant’s email address.

8. On 16 May 2017 the applicant filed an application with this Court seeking an order that the Tribunal’s decision be set aside. The application contained the following grounds (errors in original):

   Jurisdictional error has been made.

   1.The Tribunal does not treat my case fairly and my claims are ignored.

   2.The Tribunal does not consider if the delegate discloses information in the right way.

   3.The Tribunal does not consider I would be harmed if I return to Malaysia.

   4.There exists procedural error to dismiss my application.

9. I should also refer to the affidavit the applicant filed in support of her application and the affidavit the applicant filed in support of the application in a case. In the first of these two affidavits the applicant states she was harmed in Malaysia, she is afraid to return to Malaysia, and her case was not treated fairly. In the second of the two affidavits the applicant states she was harmed in Malaysia, she fears to return there, and “[m]y statement is true”. I will collectively refer to the grounds stated in the application and in the two affidavits as “the applicant’s written grounds”.

Principles for setting aside orders made in absence of party

1. The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were considered by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]

   In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

   (a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   (c) whether the applicant has a reasonably arguable prospect of success on the substantive application.

   [1] [2010] FCA 530, at [7] (cases cited omitted)

Reasons for non-appearance at hearing and delay

1. The applicant made no affidavit setting out any facts relevant to explaining her not appearing at the hearing on 12 March 2020. The applicant stated to me that she had not received notice of the hearing. I do not accept that statement, and I would not have accepted it even if it had been made in an affidavit. I admitted into evidence a copy of an email the lawyer for the Minister sent on 4 March 2020 to the email address the applicant specified in the application by which she commenced this proceeding. The email attached a letter from the Minister’s lawyer which, in turn, stated it enclosed the Minister’s outline of submissions, the Minister’s list of authorities, and an affidavit of Mr Soliola. The letter stated that the matter was listed for hearing at 10:15 am on 12 March 2020.

2. The applicant also said she had not received notice of the orders I made on 12 March 2020. She said that she only became aware of the orders after she discovered that her visa expired or was about to expire. There is no evidence the Minister’s lawyers forwarded to the applicant the orders I made on 12 March 2020, but I do not take the absence of such evidence to suggest the Minister’s lawyers did not forward to the applicant the orders shortly after my orders were entered. Given I have not accepted the applicant’s statement that she had not been notified of the hearing of 12 March 2020 because that statement is inconsistent with evidence that she received notice of the hearing by email, I am not prepared to accept the applicant’s statement of the circumstances in which she became aware of the orders I made on 12 March 2020, and I would not have accepted that statement even if it had been made in an affidavit.

Apparent merits

1. The applicant’s written grounds assume the Tribunal was obliged to consider the merits of the applicant’s claims for protection. That is incorrect. The Tribunal’s decision was predicated on the applicant’s not having attended a hearing in response to the invitation the Tribunal issued under s.425(1) of the Act to give evidence and present arguments. As I have already noted, that engaged s.426A(1A)(b) of the Act which permitted the Tribunal to dismiss the applicant’s application for review “without any further consideration of the application or information before the Tribunal”, subject to the Tribunal giving notice of that decision to the applicant to apply within 14 days to reinstate the application. The Tribunal gave such notice, but the applicant did not apply to reinstate her application for review. That had the consequence of requiring the Tribunal to confirm the dismissal of the application for review, which it did on 18 April 2017.

2. Although ground 4 of the application asserts the Tribunal made a procedural error, it does not identify what the error is said to be. In particular, the ground does not claim s.426A(1A)(b) of the Act was not engaged, or that the Tribunal failed to give notice to the applicant of its decision of 29 March 2017 dismissing the application, or that it otherwise failed to comply with s.426B of the Act. Nor does the ground assert the Tribunal acted unreasonably in the manner in which it exercised the power conferred by s.426A(1A)(b) of the Act. Even if the applicant were to have made such a claim, it would have been unarguable. The applicant did not appear before the Tribunal; the Tribunal sent to the applicant’s telephone number SMS reminders of the hearing on 22 and 28 March 2017; and there was nothing that could reasonably have suggested to the Tribunal that the applicant had not in fact received the Tribunal’s invitation to attend the hearing, or the SMS reminders.

3. At the hearing before me the applicant asserted the Tribunal did not process her application; the Tribunal “did not respond to my request”; the Tribunal was not fair; the Tribunal did not consider the harm the applicant would face on her return to Malaysia; the Tribunal made procedural mistakes; and the Tribunal did not consider the information the applicant provided, by which I understand the applicant intended to mean the Tribunal did not consider her claims for protection.

4. It is true the Tribunal did not consider the applicant’s claims for protection; but that does not mean the Tribunal made a jurisdictional error. There is no question that the applicant was invited to appear before the Tribunal to give evidence and present arguments; that she failed to appear before the Tribunal in response to the Tribunal’s invitation; and that this engaged s.426A(1A)(b) of the Act which permitted the Tribunal, if, acting reasonably, it so chose, to “dismiss the application without any further consideration of the application or information before the Tribunal”. In other words, there is no question that s.426A(1A)(b) of the Act was engaged in the circumstances of this case, and this permitted the Tribunal to dismiss the applicant’s application for review without considering the merits of her application. That is what the Tribunal did. The only avenue that was available to the applicant to seek to have the Tribunal consider her claims for protection was that provided by s.426A(1B) of the Act, namely, to apply to the Tribunal for reinstatement of her application within 14 days after receiving notice of the Tribunal’s decision of 29 March 2017 dismissing the applicant’s application for review. The applicant, however, made no such application.

5. For these reasons, neither the applicant’s written grounds, nor the matters stated by the applicant before me, raise any arguable case of jurisdictional error by the Tribunal.

438 certificate

1. There is one final matter to note. A certificate purportedly made under s.438 of the Act was issued in relation to the applicant;[2] and there is no evidence the Tribunal gave the applicant notice of this certificate. That, however, does not disclose any arguable case of jurisdictional error.

   [2] CB80

2. The failure by a Tribunal to disclose to an applicant a certificate issued under or purportedly under s.438 of the Act (438 certificate) may potentially support a claim for breach of procedural fairness. That, however, can only occur where the Tribunal is under a duty to consider the merits of an application for review; and that is because the certificate may cover documents that are potentially relevant to the merits of an applicant’s application for review. There cannot, however, be any room for the failure to disclose a 438 certificate to support a breach of procedural fairness where, as I have found is the case here, the Tribunal exercises a power available to it to dismiss an application for review “without any further consideration of the application or information before the Tribunal”; that is, without having to consider the merits of the application.

Conclusion and disposition

1. The applicant has not given an adequate explanation for her not appearing at the hearing on 12 March 2020; and the grounds on which the applicant would rely, if the orders I made on 12 March 2020 were set aside, have no merit. For those reasons I am not satisfied that it is in the interest of justice that I set aside the orders I made on 12 March 2020, and I propose, therefore, to dismiss the applicant’s application in a case.

2. At the hearing I explained to the applicant that the usual order as to costs is that costs follow the event. Mr Downie, who appeared for the Minister, submitted that, if successful, the Minister would seek an order for costs set in the amount of $1,300. The applicant made no submission either against my making an order on the basis that costs should follow the event, or my setting costs in the amount of $1,300, should the Minister succeed. I am satisfied that costs should follow the event, and that $1,300 is a fair measure of the Minister’s costs which in justice the applicant should be ordered to pay. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $1,300.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 3 July 2020