CDZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 101
Federal Circuit and Family Court of Australia
(DIVISION 2)
CDZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 101
File number(s): MLG 1035 of 2017 Judgment of: JUDGE EGAN Date of judgment: 18 February 2022 Catchwords: MIGRATION – Application for protection visas – non-appearance before the Tribunal by the applicants – no application made within time by applicants for reinstatement of the application – dismissal application required to be confirmed by Tribunal – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss. 36(2) and 426A.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Division: Division 2 General Federal Law Number of paragraphs: 17 Date of last submission/s: 7 October 2021 Date of hearing: 4 February 2022 Counsel for the Applicants: Litigant in person Solicitor for the First Respondent: Mr C Orchard Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1035 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CDZ17
First Applicant
CEA17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
18 February 2022
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Originating Application for Review filed on 19 May 2017 is dismissed.
3.The Applicant pay the First Respondents’ costs of and incidental to the Application for Review, fixed in the amount of $5,000.00.
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 EGAN:
Introduction
The applicants are married citizens of Malaysia – the first applicant is the husband and the second applicant the wife.
On 19 December 2015, the applicants arrived in Australia as Tourist visa holders.
On 16 January 2016, the applicants applied for Protection (Subclass 866) visas.
On 18 March 2016, a delegate of the Minister refused to grant the applicants the visa as it was determined that the applicants did not satisfy the relevant criterial under s. 36(2) of the Migration Act 1958 (Cth) (‘the Act’).
On or about 7 April 2016, the applicants applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the decision of the delegate. [1] At Q14 of the visa application, the applicants agreed that all correspondence was to be sent to them by email to a nominated email address. [2]
[1] Exhibit 1 – Court Book (CB) – pp. 92-98
[2] CB p. 94
On 6 March 2017, the Tribunal wrote to the applicants at a nominated address inviting them to attend a hearing before the Tribunal on 6 April 2017. Such notice advised them of the place and time at which the hearing was to occur. The applicants were further advised that should they not attend the hearing, a decision on the review might be made in their absence. The notice further provided that a dismissed case could be re-instated if the member considered it appropriate, and if the application for reinstatement was made within 14 days of the applicants receiving notice of the dismissal. [3]
[3] CB pp. 104-106
On 30 March 2017 and 5 April 2017, the Tribunal sent SMS hearing reminders to the mobile number provided as a contact number for the applicants as set out in the visa application. [4]
[4] CB p. 107
On 6 April 2017, the applicants failed to appear before the Tribunal at the hearing of their application for review of the delegate’s decision. On 7 April 2017, the Tribunal dismissed the application for review pursuant to the provisions of s. 426A of the Act. On the day of dismissal, the tribunal emailed the applicants enclosing a copy of the dismissal decision, as well as advising them that they could apply for reinstatement of the application by 21 April 2017. The applicants subsequently did not respond to such correspondence, or apply for reinstatement of their application.
On 24 April 2017, the Tribunal confirmed the decision of the Tribunal to dismiss the application for review. The Tribunal recorded that the applicants had been duly notified of the dismissal decision, and of their right to seek reinstatement of the application. The Tribunal further confirmed that the applicants had not applied for reinstatement within the relevant 14 day limitation period.
On 19 May 2017, the applicants filed an Originating Application for Review.
Consideration of Grounds of Review
The Grounds of review were as follows:
1.The Tribunal failed to consider the vital integers of the Applicants' case;
2.The applicants were not notified of the reasons for the dismissal decision in accordance with s426B(5).
3.The applicants were not advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.Therefore the Second Respondent failed to make a decision according to law: ss426A(lc ) and 426B(5). The Second Respondent unlawfully delivered its decision on 24 April 2017. This error goes to the jurisdiction of the decision maker.
5.The applicants were denied procedural fairness by the Second Respondent, as they were not advised of their rights under the law; this breach being so extreme so as to be tantamount to a jurisdictional enor: Kioa v West (1985) 185 CLR 550
6.The Second Respondent failed to consider or even show consideration to the vital evidence that are relevant to the case. The decision of the Second Respondent is seven paragraph's long with no indication as to how its conclusion was reached. This failure to consider the Applicant's claims is tantamount to a failure of the Second Respondent to perform its statutory task imposed by the legislation: Minister for Immigration v MZYTS (2013) 230 FCR 431 at [31][36] (Kenny, Griffiths and Mortimer JJ).
7.The Tribunal Member has failed to do his duty according to law.
First, s. 426A of the Act relevantly provided 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.”?? Re above Because the Tribunal dismissed the application for review pursuant to the provisions of s. 426A(1) of the Act, and because the applicants did not seek reinstatement within 14 days as required under s. 426A(1B) of the Act, by s. 426A(1E) of the Act, the Tribunal was required to confirm the decision to dismiss the application. In such circumstances, the application for review is without merit and is dismissed.
Otherwise, the Court has read the submissions filed on behalf of the first respondent on 7 October 2021, and it adopts those submissions in paragraphs 11-21 as being correct. Such submissions were as follows:
“11Grounds one and six allege that the Tribunal failed to consider the applicants’ claims. These grounds are misconceived as s 462A(1A)(b) and s 426A(1E) of the Act, permits the Tribunal to dismiss the application without considering the applicants’ claims and no jurisdictional error arises.
12Ground two alleges the applicants were not notified of the reasons for the dismissal decision in accordance with s 426B(5). Under s 426B(5), the Tribunal must notify the applicant of the dismissal decision by giving a copy of the written statement to the applicant within 14 days after the decision was made by one of the methods specified in s 441A. Under s 441A(5), one of the specified methods is emailing the document to the applicant at the last email address provided to the Tribunal by the recipient in connection with review. The Tribunal complied with s 426B(5) and s 441A(5) by emailing a copy of the decision to the applicants at the email address provided in the review application: CB 94, 109-111.
13Ground three alleges that the applicants were not advised that reinstatement could be south within 14 days of receiving the dismissal decision and htat a failure to apply for reinstatement within the 14-day period would result in confirmation of the decision. Under s 426B(6) of the Act, along with a copy of the written statement of the dismissal decision, the Tribunal must also provide the applicants with a statement describing the reinstatement and confirmation of decision provisions in s 426A(1B) to s 426A(1F). The Tribunal’s letter dated 7 April 2017 at CB 110 complied with this obligation. The Tribunal was not required under s 426B of the Act to advise that a failure to seek reinstatement would result in confirmation of the dismissal decision.
14Ground four alleges the Tribunal failed to make a decision according to law with reference to s 426A(1C) and s 426B(5) and that the Tribunal unlawfully delivered the confirmation decision on 24 April 2017. The Tribunal was required to confirm the dismissal decision under s 426A(1E). The applicant’s reference to s 426A(1C) is otherwise misguided – that provision only applied once an application for reinstatement was made. The Tribunal’s procedure with respect to s 426B(5) was also lawful for the reasons given at paragraph 19 with respect to ground two.
15Ground five alleges the applicants were denied procedural fairness by the Tribunal as they were not advised of their rights under the law, relying on Kioa West (1986) 159 CLR 550. The ground is nto particularised to make it meaningful. The ground appears to relate to ground two and three which should be dismissed for the reasons given in response to those grounds. No jurisdictional error is made out by this ground.
16Ground seven alleges the Tribunal failed to carry out its duty according to law. This allegation contains no particulars and cannot succeed.
17Lastly, insofar as any challenge is made at the hearing in relation to the dismissal decision, in circumstances where the applicants failed to attend the hearing, the Tribunal was entitled to proceed to dismiss the matter under s 426A(1A)(b) without further consideration of the material before it. Having failed to apply for reinstatement within the 14 day period, the Tribunal was required to confirm the dismissal decision under s 426A(1E).
18In this regard, the Tribunal properly invited the applicants to the hearing scheduled on 6 April 2017 by sending the invitation to the applicants’ nominated email address in accordance with s 441A(5) and s 425A(2)(a) of the Act. It complied with s 425A by including statements to the effect of s 426A of the Act, gave the applicants notice of the day, time and place of the scheduled hearing and provided a period of notice in excess of the prescribed period.
19When the applicants did not appear before the Tribunal at the scheduled hearing on 6 April 2017, the Tribunal complied with s 426B(2) in making a written statement that set out its reasons for its decision to dismiss the matter for non-appearance (see [2.1] above). The written statement was then sent to the applicants’ nominated email address on the same day, together with a statement describing the effect of s 426A(1B) to (1F) in compliance with s 441A(5), s 426B(5) and s 426B(6) of the Act. The Tribunal had no power to vary or revoke the dismissal decision after the day and time the written statement was made: s 426B(4) of the Act. No jurisdictional error arises from the dismissal decision.
20Further, there is no arguable case of error in the Tribunal’s exercise of its discretion to proceed under s 426A o the Act. The Tribunal’ discretion under s 426A(1A)(b) of the Act to dismiss the application without consideration of it or the information before it, was enlivened by the applicant’s failure to appear at a hearing to which he had been properly invited. Accordingly, when the applicants failed to appear at the scheduled time and place, the Tribunal was entitled to dismiss the application without any further consideration of the application or the information before it (ss 426A(1A)(b) and 426B). The Tribunal’s discretion to proceed under s 426A(1A)(b) is discretionary. However, it must be exercised reasonably.
21In circumstances where the applicants did not attend the interview before the delegate, did not respond to the hearing invitation, and the Tribunal had sent SMS reminders to the applicant on his telephone number provided with the application for review, the applicants’ non-appearance was unremarkable and it was reasonable for the Tribunal to proceed as it did in the circumstances.”
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135] (‘SZMDS’):
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Originating Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 18 February 2022
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