CHN18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 951
Federal Circuit and Family Court of Australia
(DIVISION 2)
CHN18 V Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 951
File number(s): MLG 1203 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 17 November 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Applicant failed to appear at Tribunal hearing following invitation to appear – Tribunal dismissed the application for non-appearance – Applicant failed to apply for reinstatement – Tribunal confirmed decision to dismiss application for non-appearance – whether Tribunal committed jurisdictional error – Held no jurisdictional error established – Application dismissed. Legislation: Administrative Appeals Act 1975 (Cth) s 44.
Migration Act 1958 (Cth) ss425, 426A(1), 426A(1A)(b), 426B, 426B(5), 426B(6), 441A(5).
Cases cited: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760. Division: Division 2 General Federal Law Number of paragraphs: 21 Date of hearing: 8 November 2022 Place: Melbourne Advocate for the Applicant: In Person Solicitor for the Applicant: None Counsel for the Respondent: Ms McInnes Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 1203 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHN18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
17 November 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Application filed on 4 May 2018 be dismissed.
3.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $6,000.
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 BLAKE:
This is an application for judicial review of decisions made by the Administrative Appeals Tribunal ('Tribunal'). For the reasons that follow, I have decided to dismiss the application for judicial review.
BACKGROUND
The Applicant is a Malaysian national. She arrived in Australia on 9 September 2016 as a visitor. She applied for subclass XA-866 protection visa (‘Visa’) on 6 December 2016.
On 8 March 2017, a delegate of the Minister ('delegate') refused to grant the Applicant the Visa (Court Book (‘CB’) 100).
On 26 March 2017, the Applicant applied to the Tribunal for review of the delegate's decision: CB 114-119.
On 2 February 2018, the Tribunal invited the Applicant to appear before the Tribunal to give evidence and present arguments at a hearing scheduled for 15 March 2018 at 9:30 am. The Applicant failed to attend the hearing on 15 March 2018. As a result of the Applicant’s non-attendance at the hearing, on 15 March 2018, the Tribunal dismissed the application without further consideration: CB 145 (‘non-appearance decision’). The non-appearance decision is short and I set it out in full below:
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 15/03/2018 at 09:30am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender. No reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
On 15 March 2018, the Tribunal wrote to the Applicant and advised her that the Tribunal had decided to dismiss her application for review. She was advised, however, that should could apply for reinstatement of the application by 29 March 2018: CB 143. The Applicant did not apply to reinstate her application to the Tribunal.
On 5 April 2018, the Tribunal confirmed its decision to dismiss the application (‘confirmation decision’). The confirmation decision is short and I set out in full below:
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 15 March 2018 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
5.The Tribunal confirms the decision to dismiss the application.
The Applicant filed an Application for Judicial Review (‘Application’) in this Court on 4 May 2018. The Application was accompanied by an affidavit from the Applicant filed on the same date. The Applicant relied on these documents before me. The Minister filed an outline of submissions, a Court Book and a bundle of authorities prior to the hearing before me.
the application for review
The Application sets out five grounds of review as follows:
1.I have been called for hearing on 15 March 2018. Yet I couldn’t attend that day as I having anemia.
2.I tried to postpone the date, but that time I am struggle with my health condition and I am admitted to the Northern Hospital, Epping.
3.I am trying to apply reinstatement to AAT according to Migration Act 1958 – Sect 426A (2). This section does not prevent the Tribunal from reschedule 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 reschedule. But AAT has issued a decision to dismiss.
4.And also in-of the 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) there is a description and authorizing me to make such action.
5.I asked AAT to review my Application but they have told me it has been dismiss. I think that was not fair for me because of my condition and my sickness I can’t attend the Hearing.
The Applicant was invited to make oral submissions through an interpreter in relation to the Application. She informed the Court that at the time of the hearing before the Tribunal she was unwell, that she had been in and out of hospital, had endured three surgeries and had been suffering from various health issues for over a year. She informed the Court that it was only when she completed a visa check that she knew her application for protection had been refused. She informed the Court that this had led to her bringing the Application. The Applicant also stated that she did not have access to legal advice and therefore was not aware that she could apply for reinstatement.
The non-appearance decision was made by the Tribunal under section 426A(1A)(b) of the Migration Act 1958 (Cth) (‘Act’). That subsection relevantly provides that the Tribunal may by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Subsection (1) of section 426A of the Act sets out the preconditions that must be satisfied before the Tribunal can exercise the power under subsection (1A). The first precondition is that an applicant is invited to appear before the Tribunal under section 425 of the Act. The second precondition is that an applicant did not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
The first precondition has been satisfied in this case. The Applicant was invited to attend the hearing: see Court Book 131. The second precondition is also satisfied in this case. The Applicant by her own admission, did not appear.
Before me, and in the grounds of review, the Applicant says that her ill-health prevented her attendance at the Tribunal. There is no evidence before the Court, however, that she ever informed the Tribunal of this, or sought to reschedule the hearing on the basis of her ill-health.
Subsection (1B) to section 426A of the Act relevantly provides that if the Tribunal dismisses the application, an applicant may within 14 days after receiving notice of the decision, apply to the Tribunal for reinstatement of the application. As I have noted in the background, the Applicant received notice of the non-appearance decision. She was also informed that she could apply for reinstatement of her application. Having considered the material, I am satisfied that the requirements set out in section 426B(5) and (6) have been met. The Applicant acknowledged before me that she did not make any application for reinstatement.
The failure of the Applicant to apply for reinstatement enlivened the power set out at subsection (1E) to section 426A of the Act. Subsection (1E) relevantly provides that if an applicant fails to apply for reinstatement within 14 days, the Tribunal ‘must’ confirm the decision to dismiss the application. The Tribunal was thus required by subsection (1E) to confirm the decision to dismiss the application once it became clear that the Applicant had not applied for reinstatement.
When the matters above are considered, no error by the Tribunal is established. The Tribunal’s discretion to dismiss the application on the basis of the Applicant’s non-appearance was enlivened, and the Tribunal did not commit any error in exercising the power given to it under subsection (1A)(b) of section 426A of the Act. Furthermore, the Tribunal was required by subsection (1E) to confirm the non-appearance decision in circumstances where the Applicant had not applied for reinstatement.
The Applicant sought to rely on section 426A(2). That section relevantly permits the Tribunal to reschedule an applicant’s appearance before it, or from delaying its decision, in order to enable an applicant to appear. The Tribunal could have taken that course, however it elected not to do so on the day. That was a matter for it and there was nothing unreasonable in the Tribunal deciding to proceed in the manner it did given the provisions in the Act.
The Applicant also raises in Ground 4 of the Grounds of Review, section 44 of the Administrative Appeals Act 1975 (Cth). The ground is not particularised and the Applicant did not expand upon this ground in the hearing before me. That is a sufficient basis upon which to dismiss it: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. Section 44 is not relevant and does not apply to the present matter.
When all of the above matters are considered, the Tribunal has not committed any jurisdictional error. The course it took was open to it. The Application must be dismissed.
The Minister sought an order that the name of the First Respondent be changed to Minister for Immigration, Citizenship, and Multicultural Affairs. I will make an order in the terms sought. The Minister also sought costs in the amount of $6,000. The Applicant has been wholly unsuccessful and I will therefore make an order for costs in the sum sought.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 17 November 2022
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