CGZ17 v Minister for Home Affairs
[2019] FCCA 1783
•28 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGZ17 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1783 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – application dismissed. |
| Legislation Migration Act 1958 (Cth). |
| Cases cited: AYT16 v Minister for Immigration & Anor [2016] FCCA 2733 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 33; 87 ALJR 618; 297 ALR 225 |
| Applicant: | CGZ17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1113 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 19 February 2019 |
| Date of Last Submission: | 19 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 28 June 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the respondents: | Ms Whittemore |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The applicant’s application filed 29 May 2017 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
The name of the first respondent be amended to Minister for Home Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1113 OF 2017
| CGZ17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of the decision made by the second respondent, the Administrative Appeals Tribunal (“the tribunal”) on 12 May 2017. On 26 April 2017, the tribunal confirmed its previous decision to dismiss the applicant’s application to review a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant the applicant a protection (class XA) visa (“the visa”).
Background
The applicant applied for the visa on 14 April 2016.[1] The basis of that application was said to be a claimed fear of harm from loan sharks in Malaysia to whom he owed money. The applicant claimed that the loan sharks had beaten him, damaged his family’s property and threatened him and his family.[2]
[1] Court book pages 1 to 34.
[2] Court book pages 29 to 31.
On 30 June 2016, the delegate refused to grant the applicant’s application for the visa essentially on the basis that the applicant could avail himself of state protection in Malaysia.[3]
[3] Court book pages 40 to 54.
The applicant applied to the tribunal for a review of the delegate’s decision on or about 8 July 2016.[4] Relevantly in that application, the applicant nominated an email address and a postal address in response to a request for his contact details.
[4] Court book pages 59 to 65.
The tribunal communicated with the applicant via his nominated email address on 29 March 2017, inviting him to attend a hearing in relation to his review application scheduled for 26 April 2017.[5]
[5] Court book pages 69 to 71.
The applicant failed to attend the scheduled hearing on 26 April 2017.[6]
[6] Court book pages 72 to 73.
On 26 April 2017, the tribunal dismissed the application pursuant to section 426A(1A)(b) of the Act (“non-appearance decision”).[7] The tribunal found that the applicant had not provided any satisfactory reason for his non-appearance and decided to dismiss the application ‘without further consideration of that application or the information before the Tribunal.’[8]
[7] Court book page 77.
[8] Court book page 77.
In advising the applicant of the non-appearance decision, the tribunal also informed the applicant that he could apply for the matter to be reinstated by 11 May 2017.[9] The information sheet about dismissal of applications expressly provides that if the applicant does not seek a reinstatement of the application, the tribunal must confirm the decision to dismiss the application.[10]
[9] Court book page 75; and supplementary court book page 1.
[10] Supplementary court book page 1.
The applicant did not seek to have the matter reinstated and consequently, on 12 May 2017 the tribunal confirmed their decision to dismiss the application (“confirmation decision”).[11]
[11] Court book pages 80 to 81.
On 29 May 2017, the applicant filed this application seeking a review of the tribunal’s decision of 12 May 2017.
This application for judicial review came before a Registrar on 20 December 2017 at which time orders were made by consent for the applicant to file and serve:
a)any amended application with proper particulars of the grounds of the application;
b)any affidavit upon which the applicant might seek to rely; and
c)written submissions (“the December 2017 consent orders”).
Notwithstanding these orders, the applicant did not file any amended application, affidavit material or written submissions.
Preliminary issues
The applicant represented himself in these proceedings. He was assisted by an interpreter.
By consent of the Minister, an order was made permitting the applicant to amend his application to include both the non-appearance decision and the confirmation decision.
At the commencement of the proceedings before me, the applicant sought an adjournment of the hearing to allow him the opportunity to obtain legal representation. This application was opposed by the Minister.
The applicant confirmed that he had not filed any material pursuant to the December 2017 consent orders. Other than saying that he did not know ‘the direction or the right direction’,[12] no reason was provided by the applicant for his failure to do so.
[12] Transcript page 4 at line 46.
In the course of submissions from the bar table, the applicant indicated that he had moved addresses after he initially filed his application for the visa which was the reason he had not received any correspondence about the hearing before the tribunal. There is no evidence before this court as to when the applicant moved address, although it appears from the submissions made that the Minister concedes that at some point, this did occur.
However, it was submitted on behalf of the Minister that the applicant’s email address remains the same as nominated by the applicant in his original application for review filed with the tribunal in July 2016.
In the circumstances, I refused to grant the adjournment sought. I indicated that I would provide more detailed reasons for this refusal in my written reasons for judgment.
This is a case in which the applicant sought judicial review of a decision to dismiss his application for non-appearance.
The applicant filed his application in this court on 29 May 2017. Importantly, the applicant concedes he was aware of the December 2017 consent orders. The applicant has had more than ample time to seek legal assistance to prepare his case.
The applicant has not placed any evidence before the court explaining why he has not been able to obtain any advice or representation in the more than 18 months since those orders were made in preparation for this hearing.
Put at its highest, the applicant said:
…I only got my documents yesterday... I did not have the time to get my lawyer so for now I wish to get time to get … the assistance of a lawyer to organise my case. … I don’t have the means to look for a lawyer so I have to look for someone who would give me a reasonable price or someone who will do it pro bono.[13]
[13] Transcript page 4 at lines 20 to 24.
Counsel for the Minister submitted that correspondence was sent to the applicant by email on 5 February 2019 serving a copy of the Minister’s submissions and related documents.[14] That correspondence also confirmed that this matter was listed for hearing on 19 February 2019.
[14] Exhibit A.
The applicant conceded that he had received this correspondence from the Minister to his nominated email address, although he stated that it was located in his junk email inbox.[15] He further stated that not recognising the author of the email, he deleted the email. It was only subsequently that he was able to retrieve it from his deleted items.
[15] Transcript page 6 at lines 26 to 30.
It is evident from the applicant’s submissions that:
a)he took no action after the December 2017 consent orders were made to progress his claim;
b)the email address which he nominated as his contact email address remained active throughout the relevant period up to and including the hearing of this matter before this court; and
c)no explanation was offered as to why the applicant did not seek legal support at any time between the making of the December 2017 consent orders and the hearing of this matter in February 2019.
Having regard to all of these factors, I am not satisfied that the interests of justice warrant an adjournment in this case. For these reasons, I refused the adjournment application.
The ground
The applicant raises the following ground of review:
The Tribunal did not make its decision of 12 May 2017 according to law in that:
Particulars
(a)The tribunal committed jurisdiction error by taking into account irrelevant considerations.
(b)The tribunal denied me procedural fairness because they didn’t give me a fair hearing.
(c)The tribunal failed to properly consider all of my claims.
As discussed, this ground is taken to relate to both the non-appearance decision and the confirmation decision.
As stated, the applicant represented himself in these proceedings. When invited to expand upon his grounds of review at the hearing, he failed to do so and simply requested a further adjournment to allow him to obtain legal representation.
Moreover, the applicant did not file any affidavit material as permitted pursuant to the December 2017 consent orders, which would explain his failure to attend the tribunal hearing on 12 April 2016 and his failure to seek the reinstatement of his claim within the 14 day time limit.
Putting his submissions at their highest, the applicant said that he did not receive the written correspondence from the tribunal advising him of the hearing as he had moved address. However, this does not sit with his concession that although his postal address may have changed, his email address did not change at any point since filing his application for review with the tribunal.
As stated, his submissions to this court were that he had, as recently as February 2019, received email communication from the Minister at his nominated email account, albeit that it had ended up in his junk email inbox.
Section 426A of the Migration Act 1958 (Cth) (“the Act”) appears within Division 3 of Part 7 which, broadly speaking, sets out the tribunal’s powers. Section 426A of the Act relevantly provides:
(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.
(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.
Section 426A(2) of the Act makes it clear that the power under (1A) above is discretionary and permits the tribunal to reschedule the applicant’s appearance, or otherwise delay making a decision.
It is conceded that the discretion to dismiss a claim in circumstances covered by section 426A(1) of the Act, whilst broad, must be exercised reasonably.[16]
[16] Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 33; 87 ALJR 618; 297 ALR 225.
Relevantly, section 426A(1C) of the Act further provides that where the tribunal decides to exercise its power to dismiss an application for non-appearance, the applicant may seek to have the application reinstated by making a request within 14 days.
Section 426(1E) of the Act then goes on to provide:
If the applicant fails to apply for reinstatement within the 14 day period … the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.[17]
[17] Migration Act 1958 (Cth), s 426(1E).
Also relevant to this application is section 425A of the Act which provides that if an applicant is invited to appear before the tribunal, the notice of invitation must be given to the applicant (unless in immigration detention) by one of the methods specified in section 441A of the Act. Moreover, the period of notice given must be at least the prescribed period or if no period is prescribed, a reasonable period.
Section 441A of the Act relevantly includes one of the prescribed methods of giving notice as ‘transmitting the document by email’ to the ‘last email address … provided to the Tribunal by the recipient in connection with the review …’[18]
[18] Migration Act 1958 (Cth), s 441A.
In this case, the tribunal sent an invitation to attend a hearing on 26 April 2017 to the applicant by email on 29 March 2017 to ‘[email protected]’[19] being the email address nominated by the applicant in his application for review[20]. The period of notice given exceeded the prescribed 14 days’ notice.
[19] Court book pages 69 to 71.
[20] Court book page 64.
By virtue of section 441C of the Act, the applicant was deemed to have received the invitation to appear on 29 March 2017, being the end of the day on which it was transmitted.
The applicant did not attend at the hearing and there was nothing before the tribunal to suggest that it ought to have taken extra steps to contact the applicant or to deal with the matter in another way.
In those circumstances, the requirements of section 426A(1) of the Act having been met, it was open to the tribunal to exercise its discretion under section 426A(1A)(b) and dismiss the application. There is nothing in the material before this court to suggest that the exercise of that discretion was legally unreasonable, particularly when regard is had to the statutory context in which that discretion arises.
Moreover, on 26 April 2017, the tribunal complied with section 426B of the Act and set out its reasons for dismissing the applicant’s application for non-appearance.[21]
[21] Court book page 77.
That statement of reasons was sent to the applicant on 27 April 2017 together with a statement explaining the effect of sections 426A(1B) to (1F) of the Act in compliance with sections 441A(5), 426B(5) and 426B(6) of the Act.[22] This statement was sent by email to the same email address.
[22] Supplementary court book page 1.
The applicant was given 14 days from the date of receipt of the non-appearance decision within which to apply to the tribunal to have his application reinstated. He failed to apply for reinstatement and in those circumstances, the tribunal was required to confirm the decision to dismiss the application.[23]
[23] Migration Act 1958 (Cth), s 426A(1E); AYT16 v Minister for Immigration & Border Protection [2016] FCCA 2733 at [10].
Conclusion
For these reasons, there is no jurisdictional error established on the basis alleged in the applicant’s application. I am also not satisfied there is any jurisdictional error apparent in the tribunal’s reasons for decision.
Having reached this view, the application should be dismissed with costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 28 June 2019
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