Coq17 v Minister for Immigration

[2018] FCCA 1522

FEDERAL CIRCUIT COURT OF AUSTRALIA

COQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1522

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – confirmation of dismissal of review application for non-attendance – show cause application filed out of time – refusal of an extension of time.

Legislation:

Administrative Decision (Judicial Review) Act 1977 (Cth), ss.5, 6

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.425A, 426A, 441C, 474, 477

Migration Regulations 1994 (Cth)

Applicant: COQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1830 of 2017

Judgment of: Judge Driver

Hearing date: 12 June 2018

Delivered at: Sydney

Delivered on: 12 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr C Robertson of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1830 of 2017

COQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 March 2017.  The Tribunal confirmed an earlier decision to dismiss the review application before it on account of the non-attendance of the applicant.

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 5 June 2018. 

3. The applicant is a male citizen of India born on 19 October 1989 who arrived in Australia on 5 October 2008 as the holder of a student (Class TU subclass 574) visa.

4. On 12 May 2014 the applicant lodged an application for a protection (Class XA) visa.[1] 

   [1] Court Book (CB) 1

5. In conjunction with the application, the applicant submitted a Form 956 appointing Therese Nicholas of VT Migration as his migration agent.[2]

   [2] CB 13

6. On 23 February 2015 a delegate of the Minister refused the application and found that the applicant was not a person in respect of whom Australia has protection obligations.[3]

   [3] CB 59

7. On 1 April 2015 the applicant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal , as it then was.[4]  That application again listed Therese Nicolas of VT Migration as the applicant's representative and authorised recipient and provided the email address [email protected] (the agent's email address).

   [4] CB 70

8. By email dated 1 February 2017 the Tribunal invited the applicant to appear before it for a hearing on 20 February 2017.[5]  That invitation was sent to the agent's email address.

   [5] CB 94

9. On 5 February 2017 the applicant’s agent responded to this invitation, informing the Tribunal that she had not been able to make contact with the applicant by phone, email or post.[6]

   [6] CB 103

10. On 7 February 2017 the Tribunal attempted to contact the applicant by email to his nominated email address to tell him to contact his migration agent or the Tribunal regarding his application and contact details.[7]  The Tribunal also attempted to contact the applicant directly by phone.[8]

    [7] CB 104

    [8] CB 105

11. On 20 February 2017, the date of the scheduled hearing, the applicant failed to appear before the Tribunal.[9] 

    [9] CB 106

The decision of the Tribunal

1. By decision dated 20 February 2017, the Tribunal dismissed the application under to s.426A(1A)(b) of the Migration Act 1958 (Cth) (Migration Act) for the applicant's failure to attend the scheduled hearing.[10]

   [10] CB 115

2. The Tribunal noted that the applicant's agent had contacted the Tribunal to advise that she had been unable to make contact with the applicant, but noted that no adjournment or reason for the non-appearance had been provided.

3. By email dated 21 February 2017, the Tribunal notified the applicant’s agent of the decision to dismiss the application. The attached correspondence advised that the applicant may apply for reinstatement of the matter in writing by 7 March 2017.[11]

   [11] CB 112

4. On 8 March 2017, the Tribunal confirmed its decision to dismiss the application.[12]  The Tribunal noted that the applicant had not applied for reinstatement of the application within 14 days, and the Tribunal was therefore bound to dismiss the application.[13]

   [12] CB 121

   [13] at [4]

5. The AAT informed the applicant’s agent of the decision to dismiss the application by email on 8 March 2017.[14] 

   [14] CB 118

The present proceedings

1. These proceedings began with a show cause application filed on 13 June 2017. That application was filed outside the time period prescribed by s.477(1) of the Migration Act. The applicant seeks an extension of time pursuant to s.477(2) of the Migration Act. The application is supported by an affidavit filed with it in which the applicant seeks to explain both his failure to attend the Tribunal hearings and his delay in lodging this application.

2. The judicial review application contains three proposed grounds of review:

   1. Breach of rule of natural justice under section 5(1)(a) and section 6(1)(a) of the Administrative Decision (Judicial Review) Act 1977.

   a. Failure to provide appropriate opportunity to be heard, before the decision to the effect that the applicant was not given the opportunity to present and explain his evidence.

   2. Failure to provide reasons for the decision.  The decision makers failed to give specific reasons or backgrounds upon which the decision is based.

   3. Decision amounts to jurisdiction error.

   (errors in original)

3. There are 14 grounds for seeking an extension of time:

   1.That on or around 24 February 2014 the applicant lodged an application for a protection (XA) visa with the department of Immigration and Border Protection Sydney office through his Migration Agent Ms Theresa Nicolas.

   2.That the application was refused,

   3.That on 15 May 2014 and being dissatisfied with this decision, the applicant lodged an application with the Administrative Appeals Tribunal ("AAT") for a merit review of the decision of the minister's delegate through his migration agent.

   4.That the applicant provided his residential address to his migration agent.

   5.That on or around 15 August 2014, the applicant notified his new postal address to his migration agent, while he continued to live at the same residential address.

   6.That the applicant was regularly checking for his mails at his residential address and at his postal address.

   7.That the applicant never received any correspondence from his Migration agent or from the Administrative Appeals Tribunal about the hearing and neither received any notification of the dismissal of the application.

   8.That on 29 may 2017, the applicant visited Immigration office Sydney to get a copy of the visa as he needed it to apply for the renewal of his passport.

   9.That to his surprise he found out that his review application was dismissed by the Administrative Appeal Tribunal on 8 March 2017 on the ground of failing to attend the scheduled hearing.

   10.That the applicant made several attempts to contact his migration agent but so far unable to have any communication from him.

   11.That after failing to make the contact with his migration agent, the applicant approached new migration agent who advised him to lodge the appeal to this Honourable Court.

   12.That the applicant lodged this appeal without any further delay.

   13.That the respondent will not suffer any prejudice if the extension is granted.

   14.That the appellant have reasonable grounds to succeed in his review application, if he is given another chance to represent his case.

   (errors in original)

4. In addition to the applicant’s affidavit, I have before me as evidence the court book filed on 11 October 2017. 

5. Only the Minister filed written submissions in accordance with procedural orders made by a registrar.  

6. I invited oral submissions from the applicant this morning.  He sought an adjournment on the basis that he had, last week, consulted a firm of lawyers who have told him they need time to examine his case.  I declined that request on the basis that it was unlikely that the applicant could explain his circumstances to his lawyer any better than he was explaining to them me, and the applicant had also had around 12 months to seek whatever legal representation he wished.

7. Turning to the issue of an extension of time, the delay in this matter is about two months, which is neither insignificant nor excessive.  The explanation for the delay is an extension of the problems the applicant encountered before the Tribunal.  In short, the applicant says that he engaged a migration agent to represent him, but the agent failed to act diligently and did not tell him of the Tribunal hearing to which he was invited.  By the time the applicant found out about the Tribunal hearing, the Tribunal decision had already been made.

8. The applicant then faced a further problem in that his Indian passport had expired and he says he lacked any identification in order to establish who he was at the registry.  He was also short of funds.

9. There is nothing to support these allegations other than the applicant’s statements in his affidavit and his statements from the bar table.  However, accepting the allegations to be true, they provide at least a partial explanation for the applicant’s delay in coming to Court. 

10. The more substantial problem, however, in my view, is that the judicial review application does not disclose an arguable case of jurisdictional error. The applicant blames his agent for the fact that he did not attend the Tribunal hearing. There is, however, nothing to suggest any fraud on the part of the agent. The Tribunal complied with the requirements of the Migration Act and Migration Regulations 1994 (Cth) (Regulations) in inviting the applicant to a hearing and the Tribunal acted within the area of its decisional freedom in dismissing the application on account of the applicant’s non-attendance. The applicant himself does not assert any particularised legal error by the Tribunal. While he does assert, in general terms, jurisdictional error, that is a bald assertion.

11. I otherwise agree with the Minister’s submissions concerning the lack of legal merit in the judicial review application. 

Ground 1

1. Ground 1 alleges a breach of natural justice under s.5(1)(a) and s.6(1)(a) of the Administrative Decision (Judicial Review) Act 1977 (Cth) (ADJR Act).

2. It is clear from Schedule 1 to the ADJR Act, that that Act has no application to privative clause decisions within the meaning of s.474(2) of the Migration Act.

3. Insofar as the ground could be construed to otherwise alleging that the applicant did not receive an opportunity to be heard before the Tribunal, the Tribunal’s decision complied with the relevant statutory obligations. 

4. The Tribunal’s hearing invitation dated 1 February 2017 complied with the requirements of the Migration Act:

   a)the letter set out the date, time and location of the hearing in accordance with s.425A(1) of the Migration Act;

   b)the letter contained a statement to the effect of s.426A of the Migration Act in accordance with s.425A(4) of the Migration Act;

   c)section 425A(2) of the Migration Act requires that the hearing invitation be given to the applicant by a method specified in s.441A of the Migration Act. The hearing invitation was sent to the applicant by the method in s.441A(5); by email to the last email address provided to the Tribunal by the applicant in connection with the review, being the agent's email address;

   d)where this method of despatch is used, s.441C(5) provides that the person is taken to have received the document at the end of the day on which the document is transmitted. The applicant is therefore taken to have received the hearing invitation at the end of the day on 1 February 2017;

   e)section 425A(3) of the Migration Act and regulation 4.35D of the Regulations require that the hearing invitation give the applicant at least 14 days notice of the hearing. As the applicant was deemed to have received the hearing invitation on 1 February 2017, the applicant was given more than 14 days notice of the hearing listed on 20 February 2017.

5. As the applicant was invited to attend a hearing in a manner which complied with the requirements of the Migration Act, when the applicant failed to attend the hearing the Tribunal’s discretionary power under s.426A(1) was enlivened. This included a power to make a decision on the review without taking further action to enable the applicant to appear, under to s.426A(1A)(a).

6. The power under s.426A(1A)(a) is discretionary. The Tribunal exercised this discretion in a manner which was not unreasonable.

7. In circumstances where the applicant has only provided contact details of his agent, there was no more that the Tribunal was required to do.

8. Nevertheless, the Tribunal took additional steps of trying to contact the applicant directly, using details obtained from Departmental systems, but was unable to make contact with him.[15]

   [15] CB 104-105

9. For the above reasons, the Tribunal complied with its statutory procedural fairness obligations to invite the applicant to a hearing.  In circumstances where the applicant failed to appear, the Tribunal was entitled to dismiss the application.  The confirmation of that dismissal necessarily followed the applicant’s failure to seek reinstatement. 

10. Ground 1 accordingly has no prospects of success.

Ground 2

1. The second ground alleges that the Tribunal failed to provide reasons for its decision.

2. As set out in response to Ground 1, s.426A(1A)(a) enabled the Tribunal to proceed to make a decision on the review without taking any further action and s.426A(1E) required the Tribunal to dismiss the application because the applicant failed to apply for reinstatement.

3. The Tribunal was not required to provide any more detailed reasons than were provided and was not required to engage with the applicant's protection claims.

4. Ground 2 has no prospects of success.

Ground 3

1. The third ground alleges the decision amounts to jurisdictional error.

2. The ground is unparticularised and without further particulars this ground is incapable of substantiating any error on the decision of the Tribunal. 

Conclusion

1. I conclude that the interests of the administration of justice do not call for an extension of time in this case.  The consequence is that the judicial review application is incompetent, because the Court lacks jurisdiction to deal with it.

2. I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time be refused.

3. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606.  The applicant asserted, at least a temporary inability to pay.  Impecuniosity is not a reason for the Court to refrain from making a costs order.  I explained to the applicant the consequences of the Court making a costs order in a fixed amount.

4. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  15 June 2018