Cju16 v Minister for Immigration & Anor

[2017] FCCA 741

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJU16 v MIINISTER FOR IMMIGRATION & ANOR [2017] FCCA 741

Catchwords:
MIGRATION – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.426A, 424B(5)

Applicant: CJU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 781 of 2016

Judgment of: Judge Vasta

Hearing date: 10 April 2017

Date of Last Submission: 10 April 2017

Delivered at: Brisbane

Delivered on: 10 April 2017

REPRESENTATION

The Applicant appearing on his own behalf with the assistance of an interpreter

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application filed 29 August 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to these proceedings fixed in the sum of $5,800.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 781 of 2016

CJU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 29 August 2016, the Applicant, CJU16, seeks this Court to review a decision of the Administrative Appeals Tribunal, which had the effect of affirming a previous decision of the delegate of the Department of Immigration and Border Protection to not give Mr CJU16 a protection visa. 

2. The background is that the Applicant was a citizen of Bangladesh.  He arrived in this country as an unauthorised maritime arrival sometime in 2013 and he filed an application for a protection visa on 12 August 2013.

3. He claimed that he feared harm from members of the Awami League because he was a member of the Bangladesh National Party.  He further claimed that members of the Awami League had demanded money from him, beaten him and threatened him. 

4. On 5 December 2014, a delegate of the Minister refused to grant the visa.  The Applicant was notified of that decision on 15 January 2015.  He then applied to the Administrative Appeals Tribunal for a review of the delegate’s decision.

5. He filed that application on 18 February 2015.  He did nothing more and awaited the Tribunal to contact him.  It appears that the Tribunal contacted him on 2 May 2016, asking him to appear before it and to give evidence and present arguments relating to his review. 

6. The Tribunal said that in their correspondence that they had scheduled the hearing for 30 June 2016. The Applicant did not give any more material to the Tribunal and did not attend on 30 June 2016. Accordingly, the Tribunal, pursuant to s.426A, dismissed the application.

7. The Tribunal noted that the Applicant did not appear at the hearing and had not responded to the invitation, had not requested an adjournment and there was no explanation as to his failure to attend.  Now, under the legislation, if the Tribunal does dismiss the matter because of a failure to attend, they must notify the Applicant that it has been so dismissed and give him the opportunity to reinstate his application within 14 days.  The Applicant failed to make any application within the 14 days.

8. On 18 July 2016, the Tribunal, in very short reasons, dismissed the application again.  The Tribunal noted that, after the dismissal on 30 June 2016, 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). 

9. 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.

10. As the Applicant did not apply for reinstatement of the application within the 14-day period, the Tribunal had to confirm the decision to dismiss the application and the decision was therefore affirmed.

11. With the Tribunal making its decision on 18 July, the applicant had 35 days in which to lodge his application to this Court.  He lodged it outside of that 35-day period and, accordingly this application is technically an application for extension of time. 

12. In his application, the Applicant said this, as far as the grounds for application for extension of time:

    “I was under impression that I will be informed by phone call but I got email from AAT.  I never check my emails.  It is new for me.  I also had an appendix surgery so I am not well”. 

    In relation to the actual grounds of the application, these were:

    “I never got opportunity to appear at AAT for review to get fair chance for a trial or hearing.  I need a chance to say my story and appeal against DIBP refusal.”

1. The legislation is fairly clear and, in the vernacular, one could call it “sudden death”.  When a person has been notified by the Tribunal that their hearing is on, they must appear.  And if they do not, then the sort of mechanism that occurred in this case, that is, informing the person that the matter has been dismissed and giving them 14 days to reinstate their application or the matter would be affirmed permanently, is the only option available. 

2. The Applicant today has come here and said that he did not get these messages.

3. He said that the reason he didn’t get the messages is that he was sent an email.  If he had been called on the telephone, the Applicant claims that it would have been a different story. 

4. The problem for the Applicant is that he had provided an email address, a phone number and a residential address.  The legislation allows the Tribunal to contact a person in any manner in which they see fit, as long as it fits into one of the categories.  One of those categories is email.  If the Tribunal chooses to contact the person through email then that is acceptable. 

5. It should be noted as well that there was nothing in the email chain that suggested to the Tribunal that the Applicant did not receive the message. 

6. There were no bounce backs or anything of that nature.  It simply is that the Applicant says he got the email.  He just did not check the email.  That may have the unfortunate consequences that have occurred here, but it does not mean that the actions of the Tribunal were not done according to law. 

7. What the Court must do in reviewing this matter is to see if there is a jurisdictional error.  In this case, the Court must look at the decision that the Tribunal has made and ask whether the decision the Tribunal made is one that could have been made rather than should have been made.

8. The “should have been made” connotes a measure of discretion, whereas the “could have been made” is whether there was an actual ability, or jurisdiction, to make that decision. 

9. In my view, the decision made by the Tribunal was certainly open to it upon the material that they had.  Whether that is a decision I would have made is not the point.  It is whether the decision was open to the Tribunal. 

10. Having come to that conclusion, I find that there is no jurisdictional error and therefore I must dismiss this application with costs in the sum of $5,800.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  19 April 2017