CCN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 678
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CCN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 678
File number(s): MLG 1002 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 22 August 2022 Catchwords: MIGRATION – failure of the applicant to appear at Tribunal hearing or to seek reinstatement – notification letter contained error using an epoch date – caution against generally characterising inconsequential errors as being “typographic” errors
WORDS AND PHRASES – “typographic error”
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 42A
Migration Act 1958 (Cth) ss 422B, 425, 425A, 426, 426A, 426B, 441A, 441C, 477
Migration Regulations 1994 (Cth)
Cases cited: DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492
EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 222
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
MZALO v Minister for Immigration and Border Protection (2016) 70 AAR 495
Re Refugee Review Tribunal: Ex Parte H (2001) 179 ALR 425
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submission/s: 29 March 2022 Date of hearing: 15 March 2022 Place: Sydney The Applicant: The Applicant appeared in person Solicitor for the Respondents: Mills Oakley ORDERS
MLG 1002 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCN17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
22 AUGUST 2022
THE COURT ORDERS THAT:
1.The application filed on 16 May 2017, as amended, is dismissed.
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 GIVEN:
By an application to show cause filed with this Court on 16 May 2017 the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 April 2017 which confirmed its earlier decision to dismiss the review pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant is a male citizen of Malaysia who first arrived in Australia on 13 September 2012 on a Visitor visa (Court Book (CB) 19-20). He departed Australia on 12 March 2013, and returned on 14 January 2015 (CB 46).
On 5 October 2015, the applicant applied for a Protection (Subclass 866) visa (visa) (CB 1-35). He claimed to fear harm from the Malaysian Police and the Malaysian Government because he was a member of the “Bersih” non-governmental organisation. The applicant claimed to fear being imprisoned or forced to pay a fine if he returned to the country. He also claimed he had been “hit” by the Malaysian police in the past but was able to get away before being caught (CB 30-31).
On 9 March 2016, a delegate of the first respondent (delegate) refused to grant the applicant a visa (CB 46-55). In summary, the delegate found the applicant provided “vague information and minimal detail” about his protection claims and provided no evidence to support his assertion that he joined the Bersih or was otherwise politically active. The delegate was not satisfied that the applicant had a political profile or was of adverse interest to the Malaysian authorities or anyone in Malaysia. Accordingly, the delegate was not satisfied that the applicant was owed any protection obligations (CB 53-54).
On 4 April 2016, the applicant sought review with the Tribunal. By his review application, the applicant nominated himself as the person to receive all correspondence from the Tribunal, for which purpose he provided an email address (gmail address), a mobile telephone number and a postal address (CB 56-57).
On 23 March 2017, the applicant was invited to a hearing scheduled at 9:30am on 13 April 2017. The invitation was sent by email to the gmail address (CB 61-67). The invitation also included a blank form titled: “Response to hearing invitation – MR Division”. The applicant was asked to complete and return it within seven days. The applicant did not respond to the Tribunal’s hearing invitation, in time or at all.
On each of 6 and 12 April 2017, the Tribunal sent SMS hearing reminders to the applicant’s mobile phone number reminding him of his upcoming hearing on 13 April 2017 (CB 70).
On 13 April 2017, the applicant did not attend the hearing (CB 71-73) and the Tribunal recorded the hearing as being a “no show” at 11:00am on that day (CB 73). On the same day, the Tribunal:
(a)made a decision at 2:39pm to dismiss the applicant’s review application under s 426A(1A)(b) of the Act (non-appearance decision) (CB 78); and
(b)notified the applicant of the non-appearance decision (CB 74-78).
The covering letter which enclosed the non-appearance decision explained to the applicant that his review application had been dismissed and said that the applicant (CB 75):
may apply to us, in writing, for reinstatement of the application by 1 January 1900 (sic).
Enclosed together with the covering letter and the non-appearance decision was a form titled: “Information about dismissal of application – MR Division” (CB 76-77), which stated:
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application.
…
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application…
On 28 April 2017 the Tribunal made a decision which confirmed its non-appearance decision (confirmation decision) (CB 79-84) finding itself satisfied that the applicant was notified of the non-appearance decision and given a copy of that decision in accordance with s 426B(5) of the Act, and that he was advised that reinstatement could be sought within 14 days. As the applicant did not apply for reinstatement within the period, the Tribunal found that it must confirm the decision (CB 84).
Relevant legislation
The following sections of the Migration Act are relevant to the current matter. Section 425 of the Act is as follows:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 426A of the Act is as follows:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B)If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C)On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a)if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b)confirm the decision to dismiss the application, by written statement under section 430.
Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b)the Tribunal must conduct (or continue to conduct) the review accordingly.
(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.
Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F)If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G)To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
Section 426B of the Act is as follows:
426B Failure to appear—Tribunal’s decisions, written statements and notifying the applicant
Decisions to which this section applies
(1)This section applies in relation to the following decisions (each of which is a non‑appearance decision):
(a) a decision to dismiss an application under paragraph 426A(1A)(b);
(b)a decision to reinstate an application under paragraph 426A(1C)(a) and to give directions (if any) under that paragraph.
Note: For similar provisions applying to a decision to confirm the dismissal of an application under section 426A, see sections 430 and 430A.
Written statement of decision
(2)If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:
(a) sets out the decision; and
(b) sets out the reasons for the decision; and
(c) in the case of a decision to reinstate an application:
(i) sets out the findings on any material questions of fact; and
(ii)refers to the evidence or any other material on which the findings of fact were based; and
(d) records the day and time the statement is made.
(3) A non‑appearance decision is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(4)The Tribunal has no power to vary or revoke a non‑appearance decision after the day and time the written statement is made.
Note: However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 426A(1D)).
Notice to applicant
(5)The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
Notice to Secretary
(7)A copy of the written statement made under subsection (2) must also be given to the Secretary:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441B.
Validity etc. not affected by procedural irregularities
(8)The validity of a non‑appearance decision, and the operation of subsection (4), are not affected by:
(a)a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or
(b) a failure to comply with subsection (5), (6) or (7).
Regulation 4.35D of the Migration Regulations 1994 (Cth) (Regulations) is as follows:
Prescribed periods--invitation to comment or give additional information
(1)This regulation applies, for subsection 424B(2) of the Act, if a person is invited to give additional information, or to comment on information, other than at an interview.
(2) If the invitation relates to an application for review of a decision that applies to a detainee, the prescribed period for giving the information or comments:
(a) commences when the detainee receives the invitation; and
(b) ends at the end of:
(i) 7 days after the day the detainee receives the invitation; or
(ii)if the detainee agrees, in writing, to a shorter period of not less than 1 working day--the shorter period.
(3) If the invitation relates to any other application for review of a decision, the prescribed period for giving the information, comments or response:
(a) commences when the person receives the invitation; and
(b) ends at the end of:
(i) 14 days after the day the person receives the invitation; or
(ii)if the person agrees, in writing, to a shorter period of not less than 1 working day--the shorter period.
(4) A response to the invitation is taken to be given to the Tribunal when a registry of the Tribunal receives the response.
Note 1:If the Tribunal gives a person a document by a method specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method.
Note 2:A document given to a person in immigration detention is given in the manner specified in regulation 5.02.
Section 422B of the Act has the effect that the provisions of Part 7, Division 4 of the Act constitute an exhaustive statement of the requirements of the natural justice hearing rule.
APPLICATION BEFORE THE COURT
By an application to show cause, the applicant seeks judicial review of the Tribunal’s decision and raises the following eight grounds of review (errors in original):
1.The Tribunal erred in Paragraph 2 of the Decision Record by dismissing the application on 13 April 2017 for non-appearance by the Applicant.
2.The Tribunal ought to have granted the Applicant an adjournment or reschedule under s 426A(2) of the Migration 1958.
3.The Tribunal was too harsh and strict.
4.The Tribunal is not a strict court of law.
5.The Tribunal erred in summarily dismissing the application when it should have considered whether an adjournment or reschedule would have been available and if the Applicant should have been entitled to an adjournment or reschedule, which the Applicant submits it would have been entitled, and to have granted such an adjournment or reschedule.
6.The Tribunal has made a fatal error of procedure in proceeding to dismiss the application without considering an adjournment or considering to reschedule the hearing.
7.An adjournment or reschedule would have been appropriate it was the first hearing date. Failing to grant an adjournment or reschedule has locked the applicant out of his review.
8.Section 42A(8B) of the Administration Appeals Tribunal Act grants 28 days to seek a reinstatement and this provision should apply in favour of the Applicant.
The application for judicial review only sought judicial review of the confirmation decision and did not seek judicial review of the non-appearance decision dated 13 April 2017.
On 6 December 2017 a Registrar of this Court made orders by consent which provided, inter alia, for the applicant to file and serve any amended application 28 days before the final hearing which was initially listed before another Judge of this Court in June 2020, following which the hearing was vacated and the matter was placed in the Central Migration Docket.
On 27 October 2021 the matter was docketed to me and set down for a final hearing on 17 January 2022, at which time the applicant was granted further leave to amend up to 14 days before the hearing. Due to the unavailability of the Court at that time, the matter was relisted for hearing on 15 March 2022. Essentially, the applicant was given two opportunities to amend his application, neither of which he utilised. Similarly, the applicant did not file any written submissions. The first respondent filed submissions on 11 January 2022 and, with leave, supplementary submissions on 29 March 2022.
By the application to show cause, the applicant sought review of only the confirmation decision. The first respondent’s written submissions indicated that, notwithstanding this, leave to both amend, and have time extended to do so, was not opposed (the extension being necessary because had the applicant sought review of both decisions as at the date he applied to this Court, he would have been five days outside the 35-day time limit prescribed by s 477(1) of the Act in respect of the non-appearance decision). Accordingly, after confirming with the applicant that he wished for both decisions to be before the Court, I made an order in respect of leave and the consequential extension of time. The first respondent is to be commended for taking such a practical approach in this regard.
The parties appeared before me using the Microsoft Teams platform due to ongoing COVID-19 precautions. The connection was clear and the parties did not appear to have any difficulty in understanding one another nor engaging with the Court. An interpreter in the Malay language was present throughout to assist the applicant, however the applicant indicated that he wished to address the Court in English, which he did.
The Court Book, filed on 13 September 2017 was tendered by the first respondent and marked Exhibit “1R”.
At the outset of the hearing, the limitations on the Court’s jurisdiction in relation to the granting of visas was explained to the applicant and he indicated that understood.
Even though the grounds of the application are expressed as being eight separate paragraphs, there are really only two complaints raised by the applicant, namely:
(a)the Tribunal ought to have granted the applicant an adjournment or sought to reschedule the hearing (grounds 1 to 7); and
(b)ground 8 provides that s 42A(8B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides 28 days in which a reinstatement can be sought and that this provision should apply in favour of the applicant.
In support of the originating application, the applicant filed an Affidavit containing various submissions and attaching the Tribunal decisions, both of which were already before the Court in the Court Book. As a result I received the applicant’s Affidavit as a submission. The body of the Affidavit is in relatively identical terms to the grounds of review, but with some additional paragraphs which state that the applicant did not have enough time to seek reinstatement in 14 days, that he should have been given 28 days and he sought that his case be sent back “for a fresh, impartial and fair hearing”. This statement has been treated as being an additional allegation of bias.
Failure to adjourn
Grounds 1 to 7 of the application and the additional paragraphs in the applicant’s Affidavit allege that the Tribunal erred by not adjourning or rescheduling the hearing. When asked to address these grounds in oral submissions the applicant stated that he had overlooked the date of the Tribunal hearing and subsequently “didn’t know what to do”. The applicant stated that he saw a lawyer who assisted him. He stated that he was expecting that rather than filing an application with the Court, he would get a new date with the Tribunal.
The evidence before me in the Court Book contains some matters of note.
First, in the application to the Tribunal seeking review of the delegate’s decision the applicant had responded “Yes” in each of the “In immigration detention” and “In community detention” boxes respectively (CB 56). This will become relevant shortly.
On 23 March 2017 the Tribunal wrote to the applicant to invite him to the hearing on 13 April 2017 (CB 61-67). The applicant was asked to attend 30 minutes before the scheduled start time (CB 62). The letter also asked the applicant to advise the Tribunal as soon as possible if he was unable to attend the hearing and told that any request to postpone the hearing must be made in writing, as early as possible and include the reasons for why it was sought (CB 63).
The 23 March 2017 letter further advised the applicant that if he did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or the Tribunal may dismiss his application for review without further consideration. The letter also then referred to the fact that if so dismissed, reinstatement was possible if the Tribunal member considered it appropriate and if the application was made within 14 days.
The material in the Court Book indicates that there was no response to that hearing invitation. A Case Note (CB 70) records that:
(a)seven days before the hearing, the Tribunal sent an SMS reminder to the applicant’s mobile number (being the same mobile number provided by the applicant to the Tribunal, and also to this Court);
(b)six days before the hearing, a Tribunal officer telephoned the applicant and had a conversation which continued to suggest that the applicant was in community detention, presumably prompted by the applicant’s response to the information contained in the application (see [29] above). However, it appears that the applicant eventually confirmed during this call that he was not in community detention. Aside from telling the Tribunal that he might have put the wrong information in that form, the applicant is not recorded as having said anything else. Specifically, there is no reference to any request to adjourn the hearing; and
(c)one day before the hearing, the Tribunal sent another SMS reminder to the applicant’s mobile number.
I am satisfied from the material in the Court Book that the applicant was properly invited to a hearing from the Tribunal in accordance with the requirements of s 425 of the Act. Having reviewed the invitation letter I am also satisfied that it:
(a)gave the applicant notice of the day, time and place at which he was scheduled to appear, thereby complying with s 425A(1) of the Act;
(b)provided the applicant with ample notice of the impending hearing. The prescribed period is 14 days (see reg 4.35D). The period of notice given to the applicant was 21 days by reference to the date on which he was deemed to have received the invitation (being the same date it was sent pursuant to s 441C(5) of the Act);
(c)was sent to the applicant’s nominated email address, being a permissible method of transmission pursuant to s 441A(5)(b) of the Act; and
(d)contained a statement to the effect of s 426A of the Act.
Having therefore complied with each ss 425 and 425A of the Act, when the applicant failed to appear on 13 April 2017 the Tribunal was permitted to dismiss the applicant (by a written statement under s 426B of the Act) without any further consideration of the application or information before the Tribunal and, it did so, pursuant to s 426(1A)(b).
Proceeding in that way was discretionary, such discretion being required to be exercised reasonably: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [3] per Kiefel CJ. This principle has been acknowledged by the first respondent by his written submissions. However, the first respondent says that there is nothing to suggest that the Tribunal’s exercise of power in this regard was unreasonable, arbitrary, capricious, without common sense or plainly unjust. I agree.
In relation to the applicant’s engagement with the Tribunal, the first respondent says that there was no reason for the Tribunal to think that he had not received the hearing invitation or had any issue with the hearing date, noting that the applicant had not responded to the invitation and did not (even in the application to this Court) provide any explanation for not attending the Tribunal hearing. Nor has the applicant made any suggestion that he did not receive the reminders.
The first respondent says that this was not a case where there had been a pattern of “close contact” between the applicant and the Tribunal, such that it might be reasonable to expect the Tribunal to also telephone the applicant to ascertain why he had not attended the hearing: see MZALO v Minister for Immigration and Border Protection (2016) 70 AAR 495 at [24] per Mortimer J. It is also submitted for the first respondent, relying on MZALO at [24], that the applicant’s previous behaviour during the course of his review proceedings did not suggest a close and vital interest in its prosecution.
In this regard, the applicant’s only contact with the Tribunal following his review application was instigated at all times by the Tribunal itself, including its phone call to him on 7 April 2017. Relevant to the applicant’s various complaints that the Tribunal failed to adjourn or reschedule his proceedings, there is nothing to suggest that he had indicated that he could not or would not attend, and there appeared to have been no attempt by him to seek such an adjournment if that was what he desired.
There is no material before the Court (much less was there anything before the Tribunal) to suggest that by the time the Tribunal proceeded to make its decision after 2:00pm on the date of the hearing any misadventure had befallen the applicant, or that he was simply running late. The applicant had been asked to be at the Tribunal premises at 9:00am for a 9:30am hearing and by 2:39pm he had not contacted the Tribunal at all, much less attended.
In the foregoing circumstances I am satisfied that the Tribunal reasonably exercised its discretion to make a decision under s 426A(1A)(b) of the Act consequent upon the applicant’s non-appearance on 13 April 2017 and that further, there was nothing arising on the material or circumstances before it which would have prompted the Tribunal to give particular consideration to adjourning or rescheduling the hearing such that by not doing to, it erred as alleged by the applicant now.
To the extent that grounds 3 and 4 of the application seek to raise some additional complaint beyond a complaint that the Tribunal ought to have enabled the applicant a further opportunity to appear before it, or could be taken (by the use of the words “strict” and “harsh”) to go towards a bias complaint, I reject this. As noted above, the Tribunal was empowered in the precise circumstances of this case, namely the applicant’s non-attendance to proceed as it did. So empowered, it cannot be said that the Tribunal proceeded in a strict or harsh way simply by taking the very steps the Act sets out.
Similarly in this regard, and having regard to the suggestion in the applicant’s Affidavit that the Tribunal’s decision was not impartial or fair, if the applicant is seeking to allege that the decision was affected by actual bias or gives rise to an apprehension of bias, I am similarly unpersuaded. The allegation is not properly made, let alone supported by evidence. To make good such an allegation the applicant would need to demonstrate that the Tribunal had a closed mind that was not open to persuasion or that it was unwilling to evaluate all the material fairly. Such an allegation would need to be distinctly made and clearly proved: see Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [127]. As noted, the applicant has done neither.
I would also reject the suggestion that by the Tribunal proceeding as it did and not rescheduling the hearing of its own motion, a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that it had not brought an impartial mind to the resolution of the question to be decided having particular regard to the background of there not having been contact with the Tribunal of the applicant’s own instigation: see Re Refugee Review Tribunal: Ex Parte H (2001) 179 ALR 425 at [31].
In the context of this case the information which would be given to the lay observer would include the applicant’s level of interaction with the Tribunal, his non-attendance and the statutory regime which expressly authorised the Tribunal to proceed as it did in those circumstances. There is nothing strict, harsh, partial or unfair about it having done so in the circumstances of the instant case and to the extent the applicant alleges otherwise, such allegations are not made out.
Reinstatement
By Ground 8 (and paragraph [9] of the applicant’s Affidavit), the applicant alleges that he ought to have been given 28 days, rather than 14 days in which to seek reinstatement. This assertion appears to hinge on a misunderstanding of s 42A(8B) of the AAT Act. Section 42A of the AAT Act relevantly states:
Discontinuance, dismissal, reinstatement etc. of application
Dismissal if parties consent
(1)Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.
…
(1B)If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.
…
Reinstatement of application
(8)If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
…
(8B) For the purposes of subsections (8) and (8A), the period is:
(a)28 days after the party receives notification that the application has been dismissed; or
(b) if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.
As can be seen by the extract above, s 42A(8B) of the AAT Act concerns dismissals by consent under s 42A of the AAT Act. While the subsection was in force at the time of the Tribunal’s decision in this matter, it appears to have since been repealed. In any event, it has no relevant application to the present case because the Tribunal’s reinstatement powers derive from was s 426A(1B) of the Act, which expressly provided that the applicant had 14 days from notification of the non-appearance decision to make a reinstatement application, something he was told at the time he was invited to the hearing.
At hearing before me, the applicant was asked if there were any submissions he wished make in relation to ground 8. The applicant said that after the matter was dismissed by the Tribunal he did not know that there was any particular timeframe in which he must seek reinstatement, that it was a “mistake” that he overlooked the date (being 14 days after receiving notice of the dismissal decision (CB 76)) and that he sought legal advice from a lawyer thereafter.
While the Court is prepared to accept the applicant may not have properly understood the legislative regime or his reinstatement options, this by itself does not constitute an error on the part of the Tribunal and accordingly, the ground is not made out.
Additional issue
The first respondent has raised an additional issue in his submissions, for consideration by the Court.
On 13 April 2017, being the date on which the Tribunal made its non-appearance decision to the applicant, it also dispatched a copy of that decision to the applicant. This was sent under cover of letter (Notification Letter) (CB 75) transmitted to him by email to the email address given in connection with the review (CB 74).
Also attached to that email and referred to in the Notification Letter was an information sheet entitled “MR20 – Information about dismissal of applications – MR Division” (CB 75) (Information Sheet).
The Notification Letter stated (emphasis added):
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 1 January 1900. 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.
The first respondent seeks to characterise this as a “typographic error”.
This is a description often used in the migration jurisdiction, often without precision, to describe a multitude of matters. While they are often styled as being “typographic” errors, many errors are not that at all.
The term “typographic” means “of or pertaining to printing” (Oxford English Dictionary) and has its origins in the manual practice of typesetting for printing letter by letter, and later, the manual typing of documents. In more modern times, a typographic error is an error in typing.
As recently discussed in EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 222 at [169], there are an array of cases which have considered the effect of such errors which while described as being typographic can include:
(a)the use of an unfortunate word with potentially racist connotations to test a non-functioning spellchecker, which was then not later manually identified and removed prior to the publication of reasons: see M257 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 131 at [34] to [51] per Riethmuller FM (as his Honour then was);
(b)Tribunal members using template paragraphs in respect of different applicants from similar countries of origin or who make similar claims, and then indiscriminately cutting and pasting into the decision of others without consideration or at the very least tailoring: see SZRBA v Minister for Immigration & Border Protection (2014) 142 ALD 211 per Siopis, Perram and Davis JJ and MZZZW v Minister for Immigration & Border Protection (2015) 234 FCR 154 at [32(10)] per Tracey, Murphy and Mortimer JJ; alternatively, using template paragraphs which deal with similar issues but again failing to tailor them such that the Tribunal wholly mis-describes the applicant’s country of origin: see SZTGE v Minister for Immigration [2014] FCCA 1458 at [22] to [26] per Judge Driver; and
(c)poor drafting/looseness of language and definitions in the written decision so that the Tribunal’s reasoning process becomes difficult to discern: Davis v Minister for Immigration, Citizenship, Migrant Service & Multicultural Affairs [2021] FCA 1368 at [30] to [43];
(d)leaving out a crucial word such as “not”, leading to the opposite finding than was clearly intended from the context of the omission: see CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 Marshall J at [27] to [29] and S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at [34] per Moore J.
Care should be taken in not seeking to use the expression “typographic” in relation to any error just as a shorthand way of saying it is an error of little, or no, consequence.
In the present case, a more logical explanation for the inclusion of the date 1 January 1900 in the Tribunal’s letter to the applicant is not that someone accidentally typed it that way. Rather, a base date of that kind is more likely to be a computer “epoch” which is a fixed point in the reckoning of time often used in computing systems as a reference point for date calculation. It is open to infer that the failure to enter a date in another part of the Tribunal’s computer system/database generated the letter with an epoch date. That error being properly described, the critical issue the effect of it and whether it gives rise to a jurisdictional error on the part of the Tribunal.
At hearing, I indicated to the solicitor for the Minister that the written submissions filed as at that date had not sufficiently assisted the Court in considering the issue. In particular, I raised the question of whether the decision of DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492 might apply and asked for supplementary written submissions addressing whether the principles emerging from DFQ17 impacted an assessment of the Tribunal’s compliance with s 426B(6) of the Act. The parties were given the opportunity to file post-hearing written submissions. Only the first respondent took this opportunity.
The first respondent properly accepts that the notification letter erroneously stated the applicant could apply for reinstatement of his Tribunal application “by 1 January 1900” but contends the erroneous date did not result in any jurisdictional error in the Tribunal’s procedures, the non‑appearance decision or the confirmation decision. The first respondent contends the Tribunal complied with the requirements of s 426B(6) by providing the applicant with an information sheet that clearly and unambiguously described the effect of s 426A(1B) and s 426A(1E) (being information that he had 14 days in which to apply for reinstatement), and the erroneous date in the notification letter did not affect the Tribunal’s compliance.
Section 426A of the Act empowers the Tribunal to dismiss an application for non-appearance in circumstances where an applicant has failed to attend a hearing before the Tribunal. Further, s 426A(1B) to s 426A(1F) establish a procedure by which an applicant can seek reinstatement of an application which has been dismissed for non-appearance.
Sections 426B(5) and (6) of the Act relevantly provide:
Notice to applicant
(5)The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(6) In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
In the instant case, s 426B(6) applied because the Tribunal dismissed the application pursuant to s 426A(1A)(b) of the Act.
The relevant question raised by the erroneous date contained in the notification letter is whether the Tribunal complied with the requirement of s 426B(6), specifically whether the applicant was provided with a statement describing the effect of s 426A(1B) and s 426A(1E), because those two subsections relate to the relevant time limit.
Section 426B(6) (set out above at [14]) is in less than clear terms because it twice uses the word “statement” but in relation to separate concepts. Read in the context of 426B as a whole, the first use of the term “the statement” in 426B(6) is a reference to the written statement of decision (see ss 426B(2) and (5)), whereas the second use being “a statement” requires that information describing the effect of ss 426A(1B) and (1F) be given to the applicant (s 426B(6) statement). The Act does not prescribe the means by which the s 426B(6) statement should be given.
The first respondent’s written submissions (in chief) were premised on the basis that s 426B(6) statement was constituted by the Information Sheet, rather than the information contained in the Notification Letter. Accordingly, the first respondent says that the error in the letter cannot be a failure to comply with s 426B(6).
Sections 426A(1B) to (1F) are set out at [13] above. In summary, in order to constitute a s 426B(6) statement it must explain:
(a)that an applicant may within 14 days after receiving notice of the decision, apply for reinstatement (s 426A(1B));
(b)what the Tribunal must do upon receiving such a reinstatement application (s 426A(1C));
(c)the consequences if the application is reinstated (s 426A(1D));
(d)that the Tribunal must reconfirm the non-appearance decision if no reinstatement application is made (s 426A(1E)); and
(e)the consequences if a confirmation decision is made (s 426A(1EF)).
In the instant case, the Notification Letter does not achieve (or seemingly even attempt) compliance with the requirements of a s 426B statement. However, the Information Sheet does. Accordingly, I accept that the s 426B statement was provided to the applicant by the Information Sheet.
The error in the Notification Letter, while unfortunate, was so contextually absurd the applicant would have no doubt paid no heed to it and, in any event, the Information Sheet contained all the information required by the statute, and more. In respect of the intersection between this matter and DFQ17, I accept the first respondent’s submission that the present Notification Letter error was confusing, but that it did not result in a failure to explain the effect of s 426A(1B) to s 426A(1F). Relevantly, s 426B(6) only required the Tribunal to explain “the 14-day period” and did not require the Tribunal to “state” the specific date by which a reinstatement application had to be made: Cf DFQ17 at [58] to [66].
As the application for review does not make out any jurisdictional error and I am also satisfied that the error in the Notification Letter did not constitute a jurisdictional error, the decision is a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 22 August 2022
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