CTG23 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 165
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CTG23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 165
File number(s): SYG 1849 of 2023 Judgment of: JUDGE MCCABE Date of judgment: 20 January 2025 Catchwords: MIGRATION – practice and procedure – application for review of a judicial registrar’s orders summarily dismissing an application for judicial review of a decision made by the Administrative Appeals Tribunal – application for review dismissed – judicial registrar’s decision affirmed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256
Migration Act 1958 (Cth) ss 425A, 426A, 426B
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Migration Regulations 1994 (Cth)
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 20 January 2025 Place: Sydney Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms C Warren (Sparke Helmore Lawyers) Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1849 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CTG23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS THAT:
1.The application dated 10 December 2024 for the review of orders by a judicial registrar dated 6 December 2024 is dismissed.
2.The orders of the judicial registrar dated 6 December 2024 are affirmed.
3.The applicant pays the first respondent’s costs in the fixed amount of $1,200.
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 MCCABE:
This written statement of reasons is based on reasons given orally at the conclusion of the hearing.
I have before me an application for review of a decision made by a judicial registrar of this Court on 6 December 2024. The registrar decided to summarily dismiss Ms CTG23’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had decided to dismiss Ms CTG23’s Tribunal application after she did not appear at the Tribunal hearing. The dismissal decision was confirmed by the Tribunal on 31 October 2023.
The judicial registrar’s summary dismissal was ordered pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Ms CTG23 lodged her application for review of the registrar’s decision pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the matter has been listed before me. I have the material that was before the registrar and the updated submissions of the first respondent (minister). The hearing before me proceeds by way of a de novo review – that is, I effectively decide the application for summary dismissal afresh.
SOME BACKGROUND
The applicant is a citizen of China. She arrived in this country in June 2017 as a visitor. She thereafter applied for a Protection (Class XA) (Subclass 866) visa. Her application form is included in the court book. The applicant claimed to fear harm if she returned to China because of her Christian religion. In the course of assessing that claim, the delegate invited the applicant to an interview, but the applicant did not attend. The delegate subsequently rejected the claim.
The applicant sought review of the delegate’s decision in the Tribunal. While she provided contact details (including an email address) to the Tribunal in connection with her application, she did not appear to respond to requests for information.
On 21 September 2023, the Tribunal sent the applicant a formal invitation to attend a hearing. That hearing was listed on 13 October 2023. The hearing invitation was sent by email, and a copy is reproduced in the Court Book at pp 60ff. The invitation clearly complied with the requirements under the Migration Act 1958 (Cth) (Act) (in particular s 425A of the Act) and the Migration Regulations 1994 (Cth) because:
·it gave the applicant notice of the date, time and place at which she was scheduled to appear;
·it was given to the applicant by one of the methods specified by s 441A of the Act – because it was sent by email and transmitted to her last known address; and
·it provided more than 14 days’ notice of the event.
The letter also included a fact sheet which explained the importance of the hearing and the consequences of non-attendance. The fact sheet is reproduced in the court book at pp 64ff.
The applicant also received SMS text reminders in advance of the hearing. But she did not appear. After the applicant did not appear and calls were made to determine if she was in the precinct, the Tribunal decided to dismiss the hearing for non-appearance without deciding the substance of the applicant’s claim.
The Tribunal informed the applicant of that dismissal in an email which included the statement of reasons and notice of the right to seek reinstatement. That documentation is reproduced in the court book. The Tribunal also sent out an information sheet which discussed reinstatement.
The applicant did not respond and the Tribunal, in the absence of an application for reinstatement, formally dismissed the application on 31 October 2023.
In due course, the applicant filed an application for judicial review. That application was accompanied by a statement of grounds alleging unfairness in the Tribunal’s decision-making. The matter came before a judicial registrar and the judicial registrar decided there were no reasonable prospects of success if the matter were to go to a hearing. I am effectively re-deciding that question again today. If the applicant succeeds today, the matter does not return to the Tribunal; rather, it will be listed before the Court for a final hearing in the ordinary course.
I explained to the applicant that the role of the Court was generally confined to determining whether the Tribunal’s decision was impacted by material jurisdictional error – that is, a legal or procedural error or some other shortcoming that was such that the Tribunal’s decision should be treated as if it were of no effect because the whole process miscarried. At the hearing, I am dealing in substance with a summary dismissal application where I must decide whether there are reasonable prospects of success if the matter were to go to a final hearing before this Court. That requires me to examine the Tribunal’s decision and processes that led up to the dismissal.
THE APPLICANT’S GROUNDS OF REVIEW
The grounds of review filed on 20 November 2023 are brief and general. They read as follows:
Tribunal’s action is not just and fair.
1.Tribunal did not act fairly. Tribunal did not consider relevant material before it before dismissing my application.
2.Tribunal did not check if I should be protected according to regulations.
3.Tribunal did not set out its findings and reasons for dismissing my claims.
There are problems with grounds 2 and 3: the Tribunal did not purport to consider the applicant’s protection claim because the review was summarily dismissed in light of the applicant’s non-appearance. The ultimate question is (a) whether the Tribunal was lawfully able to do what it did – that is, did it have the discretion to dismiss for non-appearance under s 426A(1A)(b) of the Act – and (b) whether there is any problem with its exercise of that discretion to dismiss. As a practical matter, I must decide whether the applicant has reasonable prospects of persuading the Court at a final hearing that the Tribunal got it wrong when it decided to dismiss the application.
I asked the applicant to talk me through her criticisms of what the Tribunal had done. She was unable to identify any errors as such. She said simply that she thought she had a valid claim for protection and that she wanted another opportunity to present it. She said she did not appreciate the consequences of not attending the hearing, and pointed out she was a lay person who did not understand Australian law.
Unfortunately for the applicant, at this juncture, the Court cannot engage with the merits of her claims for protection. I must focus on the decision that was made, which was a dismissal decision. To the extent that I am trying to work out what was wrong with the dismissal decision, her submissions were of limited assistance.
I am satisfied the discretion to dismiss was lawfully engaged. The applicant did not appear after the Tribunal sent a valid hearing notice which complied with the requirements in s 425A(1)-(4).
The Tribunal had done everything it was obliged to do in order to bring the hearing to the applicant’s attention and secure her involvement. In other words, she was given an opportunity to present her case, but she did not take it. The Tribunal’s exercise of the discretion to dismiss without proceeding to engage with the substance of her claim was not unreasonable in circumstances where it satisfied itself the applicant was properly informed and failed to attend.
Thereafter, the Tribunal wrote to the applicant enclosing notification of the decision to dismiss. That notification process complied with the requirements in s 426B. The Tribunal informed the applicant of the reasons for dismissal and advised her of the need to seek reinstatement promptly if she wished to do so. Unfortunately, the applicant did not take the opportunity to apply for reinstatement in a timely way.
In the absence of an application for reinstatement, the Tribunal’s confirmation decision was inevitable and unimpeachable. It was not tainted by error of any kind. Given that conclusion, it follows the applicant has no reasonable prospects of upsetting that decision on review – just as the registrar concluded. The application for review of the registrar’s decision must therefore be affirmed. That means the applicant is unsuccessful.
COSTS
Having decided that the application is properly dismissed, I am satisfied it is appropriate to make an order of costs against the applicant, in addition to the amounts ordered by the registrar. The minister has incurred expenses which, if not paid by the applicant, will have to be met out of public moneys, and I am not aware of any reason why it would be inappropriate to recover costs from the applicant. The minister has indicated that $1,200 reflects the actual costs incurred. That amount is significantly below the amount indicated on the Court’s scale for a case concluded at an interlocutory application and I accept it is a reasonable amount in the circumstances of this case. I will therefore make a fixed costs order in the amount of $1,200 in addition to the costs ordered by the registrar.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 12 February 2025
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