CXG18 v Minister for Home Affairs
[2019] FCCA 820
•2 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CXG18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 820 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – protection visa application – Malaysian citizen – non-attendance at Tribunal hearing – dismissal for non-appearance before Tribunal – confirmation of dismissal for non-appearance – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.425, 425A, 426A,426B, 441A, 441C, 476 Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 |
| Applicant: | CXG18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 286 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 1 April 2019 |
| Date of Last Submission: | 1 April 2019 |
| Delivered at: | Perth |
| Delivered on: | 2 April 2019 |
REPRESENTATION
| The Applicant: | In person with the assistance of an interpreter |
| Counsel for the First Respondent: | Mr T Lettenmaier |
| The Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS (as made 1 April 2019)
The application be dismissed.
Formal written Reasons for Judgment be published by Chambers at a later date.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.00 by 1 May 2019.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 286 of 2018
| CXG18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 1 April 2019 this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court. Having heard the parties, the Court ordered that:
1. The application be dismissed.
2. Formal written Reasons for Judgment be published by Chambers at a later date.
3. The applicant pay the first respondent’s costs fixed in the sum of $5,000.00 by 1 May 2019.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court on 1 April 2019.
By judicial review application filed in this Court on 25 May 2018, the applicant made an application for judicial review of a decision of Administrative Appeals Tribunal (the “Tribunal”) dated 8 May 2018 (the “confirmation decision”).
The Tribunal’s decision confirmed the Tribunal’s earlier decision (dated 23 April 2018) (“dismissal decision”) to dismiss the applicant’s application to review a decision of a delegate of the first respondent (“delegate”) that refused to grant the applicant a Protection (Class XA) visa (the “Visa”).
The Tribunal dismissed the applicant’s application pursuant to s.426A(1A)(b) of the Act on the basis of the applicant’s failure to attend a hearing before it on 23 April 2018.
The applicant now seeks review in this Court of the Tribunal’s decision.
This proceeding is brought pursuant to s.476(1) of the Act. To obtain relief from this Court, the applicant must show jurisdictional error in the Tribunal’s confirmation decision.
Background Facts
The Court notes the Minister’s written factual summary in written submissions dated 11 March 2019 at [2]-[7]. The Court has cross checked all references in these written submissions and adopts as its own the summary provided below.
The applicant, a citizen of Malaysia, arrived in Australia on 29 February 2016 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 54). On 9 June 2016, the applicant submitted an application for the Visa (CB 1-38). On 10 March 2017, the delegate refused the grant of the Visa (CB 54-67).
On 27 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 73-74). The applicant provided a nominated email address as a method by which the Tribunal could correspond with her. She did not provide a phone number.
On 27 February 2018, the Tribunal sent to the applicant, via the nominated email address, an invitation to appear before the Tribunal at a hearing on 19 April 2018 (CB 78-80). It advised her that if she did not attend the scheduled hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. That invitation was sent to her nominated email address.
On 4 April 2018, the Tribunal notified the applicant, via her nominated email address, that the hearing had been rescheduled to 23 April 2018 at 1:30pm (CB 81-83). It again advised her that if she did not attend the scheduled hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
On 23 April 2018, the applicant failed to appear at the hearing. The Tribunal recorded in a Case Note that the applicant did not attend the hearing, and that it was unable to contact her as it did not have a phone number for her (CB 84). On 23 April 2018, the Tribunal dismissed the application for non-appearance in accordance with s.426A(1A)(b) of the Act (CB 87), that being the dismissal decision.
On the same date, the Tribunal wrote to the applicant, providing her with a copy of the dismissal decision and inviting her to make any application for reinstatement of her application by 7 May 2018 (reinstatement invitation) (CB 86). The dismissal decision and the reinstatement invitation were sent to the applicant at the nominated email address (CB 85).
The applicant did not reply to the reinstatement invitation.
On 8 May 2018 the Tribunal confirmed the dismissal decision (CB 90-91).
On the same day, the Tribunal sent the applicant a copy of the confirmation decision to the nominated email address (CB 88).
The Dismissal Decision
On 23 April 2018, the Tribunal dismissed the applicant’s application pursuant to s.426A(1A)(b) of the Act.
The Tribunal noted:
a)the applicant had been invited to appear before the Tribunal, pursuant to s.425 of the Act, on 23 April 2018 at 1.30pm, and that the invitation stated that if the applicant did not attend the hearing her matter may be dismissed (CB 87 at [1]);
b)as the applicant did not provide a contact telephone number in her application for protection, it was unable to adopt its usual practice of sending SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. It was also unable to call the applicant on the day of the hearing (CB 87 at [1]-[2]); and
c)the applicant had been properly invited to the hearing in accordance with the requirements of s.441A(5) of the Act. The invitation had not been returned to sender. The applicant did not appear at the hearing and no reason for her non-appearance had been given (CB 87 at [2]).
The Tribunal decided to dismiss the application without further consideration of that application or the information before it: CB 87 at [3].
The Confirmation Decision
The applicant was notified of the Tribunal’s dismissal decision by email on 23 April 2018 (CB 85). The correspondence indicated that the applicant could apply for reinstatement of her application in writing by 7 May 2018 (CB 86) – the relevant 14 day period pursuant to s.426A(1B) of the Act.
On 8 May 2018, the Tribunal confirmed the dismissal decision pursuant to s.426A(1E) of the Act.
The Tribunal’s confirmation decision is brief and provides, relevantly, as follows:
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 23 April 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.
The applicant was notified of the Tribunal’s confirmation decision by email on 9 May 2018 (CB 88-89).
Proceedings in this Court
The Court had before it a Court Book and detailed written submissions from the Minister dated 11 March 2019. The applicant appeared without legal assistance and was assisted by an interpreter. The Court thanks the interpreter for her considerable assistance.
The applicant did not have a copy of the Court Book or a copy of the Minister’s submissions. Mr Lettenmaier, for the Minister, confirmed that both documents had been sent as hard copies and via email to the address for service provided to the Court by the applicant. The Court is satisfied that all service requirements were complied with.
To assist the applicant, the Court asked Mr Lettenmaier to take the applicant through his written submissions and ensure that, when referencing the Court Book, the interpreter had ample time to translate what was being said.
The applicant agreed with this approach and the Court is satisfied that the applicant understood what was being said to her.
By her application filed in this Court on 25 May 2018, the applicant sets out one ground of review:
I, [ ] had miss out the hearing session
A Registrar of this Court made orders requiring the applicant to file an amended application and any affidavit on which she wished to rely. She was also given the right to file written submissions before the hearing.
Nothing was received by the applicant.
This puts the respondent at a disadvantage as it makes it difficult for the respondent to gauge what, precisely, the applicant thinks the Tribunal did wrong.
A failure to particularise provides a basis for a judicial review application to be dismissed (AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J).
The Court notes, however, the more recent decision of Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8], in which His Honour commented that the consequences of a failure to particularise will depend upon the circumstances. His Honour observed that it will rarely be appropriate to simply dismiss an appeal ground in a migration case for lack of particularisation where the appellant seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. His Honour found that, in such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground (at [9]).
Noting that the applicant was unrepresented and that this matter at involved a claim for protection, the Court proceeded to hear from the applicant.
The Court explained to the applicant that the Court could not engage in “merits review”. As outlined in Minister for Immigration & Ethnic Affairs v Wu Shan Liang and Others (1996) 136 ALR 481 at 491:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The Court then explained that the possible categories of jurisdictional error for migration decisions of this sort commonly include the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The applicant was asked to outline what, in her opinion, she felt the Tribunal “did wrong”.
Unfortunately, the applicant did not provide any further information which can be said to constitute a proper ground of review. She initially seemed to indicate that she had in fact appeared before the Tribunal (despite what was said in her application for review) but later suggested that she was confused and only appeared in this Court.
The Court accepts, based on the evidence before it, that the applicant did not appear before the Tribunal.
In relation to whether the Tribunal fell into jurisdictional error, the Minister contended:
a)section 426A(1A)(b) of the Act applies in circumstances where an applicant is invited to appear before the Tribunal pursuant to s.425 of the Act and fails to appear;
b)the Tribunal’s hearing invitations were both sent by way of email to the applicant’s nominated email address (CB 78-80; 81-83);
c)the notices complied with the requirements in s.425A of the Act. Relevantly:
i)the Tribunal gave the applicant notice of the day, time and place of the scheduled hearing;
ii)the notices were transmitted by email to the last email address provided to the Tribunal by the applicant in connection with the review (as required by s.441A(5) of the Act);
iii)the periods of notice were more than the prescribed period; and
iv)the notices contained a statement on the effect of s.426A of the Act that if she did not attend the scheduled hearing, the Tribunal might make a decision on the review without taking any further action to allow or enable her to appear before it, or might dismiss her application without any further consideration of the application or the information before it;
d)as the Tribunal sent the hearing invitations by email, the applicant was taken to have received the email at the end of the day on which it was transmitted (s.441C(5) of the Act);
e)the above requirements having been met, s.426A(1A)(b) of the Act permitted the Tribunal to dismiss the application without any further consideration of the application;
f)pursuant to s.426B, the Tribunal was required to make a written statement setting out the decision and, pursuant to s.426B(5) of the Act, notify the applicant of that decision by one of the methods specified in s.441A of the Act. The Tribunal did so by way of email on 23 April 2018 (CB 85-87);
g)the applicant failed to make an application for reinstatement within the specified 14 day period;
h)pursuant to s.426A(1E), the Tribunal was then obligated to confirm the dismissal decision;
i)there is nothing on the face of either decision, nor in the Tribunal file, to suggest that the Tribunal misinterpreted or did not comply with the legislative requirements in dismissing the proceeding pursuant to s.426A(1A)(b) of the Act; and
j)nor could it be said, in circumstances where the conditions precedent for the exercise of the discretionary power in s.426A of the Act were enlivened, that there was anything unreasonable in the manner in which the Tribunal exercised that power.
The applicant made no comment in relation to these submissions.
Consideration
This matter echoes the recent decision of Judge Lucev of this Court in EWV17 v Minister for Immigration & Anor [2018] FCCA 1250 (“EWV17”). The Court is guided by His Honour’s findings in that matter.
Pursuant to s.426A(1A)(b) of the Act, the Tribunal can dismiss an application upon the non-appearance of an applicant at a Tribunal hearing.
While the Tribunal has the discretion to dismiss an application in the exercise of the power under s.426A(1A)(b) of the Act, it must ensure when doing so that the applicant is afforded procedural fairness, and that the decision to dismiss is not legally unreasonable in the circumstances of the case: Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713 at [66]-[70].
The evidence before the Court shows that:
a)the applicant was sent an invitation on 27 February 2018 to attend the Tribunal in accordance with s.425A of the Act;
b)that invitation stated the day, time and place at which the applicant was scheduled to appear at the Tribunal and a statement setting out the effect of s.426A of the Act (i.e. that the application might be dismissed for non-appearance): Act, s.425A(1) and (4);
c)the invitation was provided to the applicant, as required by s.425A(2)(a) of the Act, by one of the methods specified in s.441A of the Act, namely transmission by email to the applicant’s nominated email address in accordance with s.441A(5) of the Act. The applicant consented to receiving electronic communication: CB 17;
d)the invitation satisfied the requirements of s.425A(3) of the Act. It by provided 14 days’ notice of the Tribunal hearing, as required by reg.4.35D(3) of the Migration Regulations 1994 (Cth); and
e)the applicant was sent an invitation to attend a rescheduled hearing. That invitation was dated 3 April 2018, was sent to the nominated email address, contained the required statement, and while it was not necessary to provide 14 days’ notice (Ogawa v Minister for Immigration & Citizenship (2011) 199 FCR 51 at [27]-[35]), the second invitation did so in any event.
Provided the Tribunal has issued an invitation to appear in accordance with s.425A of the Act, the Tribunal is under no further obligation prior to the Tribunal hearing to confirm whether an applicant has received the invitation, unless there is some indication the invitation did not reach the applicant: Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39] per Spender, French and Cowdroy JJ (“SZFHC”).
The Court notes the applicant was sent an email informing her about the Tribunal hearing: CB 78 and 81. The Tribunal noted that she the invitations to appear had not been “returned to sender.” The Tribunal was not able to telephone the applicant as no telephone number had been provided. The applicant had provided only one point of contact. The Tribunal did what it could to contact her and advise her of the hearing.
When the applicant did not appear at the hearing, it was, on the evidence, open to the Tribunal to exercise its discretion under s.426A(1A)(b) to dismiss the application without any further consideration of the application or information before it. In the circumstances of this case there is no evidence that the Tribunal acted unreasonably when dismissing the appeal under s.426A(1A)(b) of the Act.
Having validly exercised the discretion under s.426A(1A)(b) of the Act, the applicant had 14 days to apply for reinstatement of her visa application. The applicant was advised that she had a 14 day period within which to apply for reinstatement. She did not do so.
In the circumstances, the Tribunal had no choice (as per s.426A(1E) of the Act) but to confirm the dismissal decision without any further consideration: EWV17; AYT16 v Minister for Immigration & Border Protection (2017) 71 AAR 491 at [9]-[10].
In the circumstances of this case the Tribunal did what it was required to do in confirming its earlier decision to dismiss the application before it.
Conclusion and Orders
In circumstances, where:
a)no proper ground of review is articulated, either in the application for judicial review or orally in court; and
b)no jurisdictional error in the dismissal decision or confirmation is established
the Judicial Review Application is dismissed.
The Court orders that the applicant pay the Minister’s costs, in the sum sought of $5,000. It is noted that this is well below the current scale of costs that guides this Court.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 2 April 2019
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