CYB18 v Minister for Home Affairs
[2020] FCCA 819
•17 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CYB18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 819 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal pursuant to s.426A(1A)(b) of the Migration Act 1958 (Cth) dismissing the review application lodged by the Applicant and a decision made pursuant to s.426A(1E) of the Act confirming that decision – whether the Tribunal erred by ignoring relevant material or otherwise – exercising its discretion unreasonably – jurisdictional error – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.425A, 426A, 426B(5), (6) & (8), 430, 441 |
| Cases cited: AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144; [2015] FCA 1383 |
| Applicant: | CYB18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1594 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 31 January 2019 |
| Date of Last Submission: | 31 January 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Tully (direct access) |
| Counsel for the First Respondent: | Mr G Johnson of Counsel |
| Solicitors for the First Respondent: | HWL Ebsworth |
ORDERS
Amends the name of the First Respondent to the ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.’
Allows the Application.
The First Respondent pay the Applicant’s costs.
A writ of certiorari issue, directed to the Second Respondent, the Administrative Appeals Tribunal, removing into the Court the Tribunal’s decision made on 4 April 2018 in respect of the Applicant’s application for review (dismissal decision), and its decision made 20 April 2018 confirming the dismissal decision, for the purposes of quashing each decision.
A writ of mandamus issue, directed to the Tribunal, requiring it to hear and determine the application of the Applicant for review of the decision of the delegate of the First Respondent made 22 November 2017 refusing to grant him a protection visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1594 of 2018
| CYB18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) seeking judicial review of two decisions of the Administrative Appeals Tribunal, the first a decision made on 4 April 2018 pursuant to s.426A(1A)(b) of the Act dismissing the review application lodged by the Applicant (dismissal decision), and the second, a decision made 20 April 2018 pursuant to s.426A(1E) of the Act to confirm the dismissal decision (confirmation decision).
Background
The Applicant, who has been accorded the pseudonym CYB18 in this Court, was born in one of the first years of this century, and is a citizen of India. He arrived in Australia in April 2016 as an unaccompanied minor, having been granted an FA‑600 (Tourist) visa offshore on 30 March 2016.
On 1 July 2016, the Applicant applied for a TU-500 (Student) visa. A delegate of the Minister for Immigration and Border Protection (at the time of hearing, the Minister for Home Affairs) refused to grant the Applicant that student visa. On 6 December 2016, the Applicant applied for a review of the delegate’s decision before the Tribunal. This review before the Tribunal was unsuccessful because his application had been lodged out of time. On 10 March 2017, the Applicant’s bridging visa ceased, and in October 2017 (noting a typographical error stating “2016” appears in the Delegate’s decision, referred to at [5] below) he was detained under s.189(1) of the Act. According to the Delegate’s decision, in the following 6 weeks, whilst in detention, and shortly after the protection visa interview with the Delegate, he was moved to detention centres interstate twice, first from Mew South Wales to Victoria, and thence to Queensland.
On 27 October 2017, whilst in detention, the Applicant lodged an application for a permanent protection (subclass 866) Visa. Accompanying his application was a Form 956 appointing Mr Ejaz Khan, a registered migration agent from Juris Australia Lawyers, as his representative (migration agent). The Applicant authorised the Department of Immigration and Border Protection (at the time of hearing, the Department of Home Affairs) to communicate with the Applicant via his representative’s phone number and nominated email address (as specified in the form).
By notification dated 22 November 2017, the Applicant was informed that his application for a protection Visa had been refused by a Delegate of the Minister, with reasons. Whilst the Delegate’s decision made 22 November 2017 does not disclose how the interview with the Delegate was conducted, according to the material in evidence before me, the Applicant was scheduled to be interviewed on 10 November 2017 whilst at Villawood Immigration Detention Centre, New South Wales, in the presence of an independent observer.
After the interview before the Delegate, but before the decision, the Applicant was relocated by the Department to immigration detention interstate. He was subsequently transferred from immigration detention in Queensland, and on 12 December 2017 was placed by the Department into community detention, at an address specified by the Department, moving interstate again, to New South Wales.
On 29 November 2017, whilst in detention, the Applicant sought review of the Delegate’s decision before the Tribunal.
On 9 January 2018, by email sent to his representative, Mr Khan (to the nominated email address), the Tribunal invited the Applicant to attend a hearing in Brisbane on 19 January 2018. By email sent late on 9 January 2018 (AEST) (corresponding to very early on 10 January 2018 (AEDT)), in response to an email from the Tribunal, the Department informed the Tribunal that the Applicant was no longer located in Queensland, and was now held in “community placement (detention)” in New South Wales. According to the Tribunal’s records, also on 10 January 2018, the Tribunal requested transportation of the Applicant from Brisbane Immigration Transit Centre to the Tribunal hearing in Brisbane scheduled for 19 January 2018. Shortly thereafter, also on 10 January 2018, the Tribunal cancelled that hearing, and transferred the matter to the Tribunal in New South Wales.
On 7 February 2018, the Tribunal sent by email (again, to the nominated email address) a letter to the Applicant’s representative now inviting the Applicant to appear at a hearing on 27 March 2018 in Sydney. That email was not delivered. The mail delivery system message in evidence coded the reason as ‘TransferFailed’. The Tribunal officer appears to have re-attempted to send the message and attached letter, but received the same undeliverable message from the server. The officer then contacted the Applicant’s representative by his direct email address, and requested authorisation to send the correspondence to that direct email address rather than the nominated email address. The Applicant’s representative authorised that avenue of communication the same day.
Thereupon, on 8 February 2018, by email sent to Mr Khan’s direct email address and enclosing letter dated 8 February 2018 with the same content as the 7 February 2018 letter, the Tribunal invited the Applicant to appear at a hearing on 27 March 2018.
The Applicant failed to attend the hearing scheduled on 27 March 2018. Within 20 minutes, according to the time noted on the hearing record sheet, the Tribunal closed the hearing. Within that time, according to the case notes of the Tribunal contained in the Court Book in evidence before me, an officer of the Tribunal called Mr Khan’s office and noted that a receptionist informed her that Mr Khan would not be attending as he was in a meeting elsewhere, and that “also they were unable to contact the applicants (sic)”. The case note records that the “receptionist asked if rescheduling will be a possibility”, and the officer advised “that any request will need to be in writing, and subject to the members discretion”.
The Tribunal then made the dismissal decision. Under cover of email dated 5 April 2018 from the Tribunal to Mr Khan to his direct email address the Tribunal sent the dismissal decision dated 4 April 2018 to dismiss the Applicant’s application for review under s.426A(1A)(b) of the Act.
Under cover of email dated 23 April 2018 from the Tribunal to Mr Khan, again to his direct email address, the Tribunal sent the confirmation decision dated 20 April 2018 pursuant to s.426A(1E) of the Act confirming the earlier decision to dismiss the Applicant’s application.
Pursuant to s.477(1) of the Act, an applicant must lodge his application for judicial review in this Court within 35 days of the Tribunal’s decision. In the present case, 35 days of the confirmation decision was 25 May 2018.
The Applicant’s explanation for his non-appearance and delay
In his affidavit sworn 6 June 2018, the Applicant deposed that on 5 May 2018, he attended an appointment with Mr Khan at his office, which appointment had been arranged by his new case manager. At the meeting, Mr Khan informed the Applicant that his application had been refused because he did not attend the Tribunal hearing.
The Applicant’s evidence is that Mr Khan did not inform him of any hearing, and that when he asked Mr Khan why Mr Khan did not contact the Applicant Mr Khan replied that he did not have the Applicant’s contact number. When the Applicant asked Mr Khan why he did not contact the Applicant’s uncle to get in touch with the Applicant (as he had the uncle’s contact details), Mr Khan did not answer.
The Applicant deposed that he only learned of the Tribunal decisions (dismissal decision, and confirmation decision) on 5 May 2018. He stated that he had not been informed of the Tribunal hearing but would have attended had he known.
The Applicant deposed that Mr Khan did not provide the Applicant with the date of the Tribunal decision, nor did he provide a copy of the decision to the Applicant. The Applicant only obtained a copy of the decision on 6 June 2018 when he attended Mr Khan’s office for a second time. Mr Khan did not advise the Applicant that he could seek judicial review of the Tribunal decision, instead advising the Applicant that his only option was to appeal to the Minister.
Commencement of the proceeding in this Court and extension of time
On 6 June 2018, the same day the Applicant picked up a copy of his documents from Mr Khan’s office, he provided them to a lawyer at a free legal clinic at a community resource centre. At that meeting the lawyer gave the Applicant advice that his application had been dismissed by the Tribunal, and that the Applicant could seek review in the Federal Circuit Court, however he would need to seek leave as the 35 day period to apply to the Court had expired.
On 6 June 2018, with the assistance of a volunteer at the community resource centre, the Applicant lodged with this Court the application seeking an extension of time to file an application pursuant to s.476 of the Act seeking review of the Tribunal’s decisions.
The parties agreed to consent orders, and on 20 June 2019 I made orders allowing the extension of time to 6 June 2018, and pursuant to r.12.02 of the Federal Circuit Court Rules 2001 (Cth), I referred the Applicant to a lawyer for legal assistance. On 25 September 2018, pursuant to Div.11.2 of the Rules, I appointed Sister Brigid Arthur as litigation guardian for the Applicant.
Legislative provisions
Section 426A of the Act provides:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a)is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A)The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B)If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note:Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C)On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b) confirm the decision to dismiss the application, by written statement under section 430.
Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D)If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E)If the applicant fails to apply for reinstatement within the 14 day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
Note:Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F)If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G)To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2)This section does not prevent the Tribunal from rescheduling 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 rescheduled.
Sub-section 426B(5) provides the method for which notification of a non-appearance decision must be delivered and provides as follows:
(5)The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b)by one of the methods specified in section 441A.
Sub-section 426B(6) and sub‑s.426B(8) then provide, respectively:
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
…
(8)The validity of a non‑appearance decision, and the operation of subsection (4), are not affected by:
(a)a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or
(b)a failure to comply with subsection (5), (6) or (7).
Pursuant to sub-s.430, the Tribunal must provide a written statement of its decision as follows:
(1)Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
(e)in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and
(f)records the day and time the statement is made.
The Tribunal’s decisions
Dismissal decision
As I have stated above, on 27 March 2018, the Applicant did not appear before the Tribunal hearing to give evidence and present arguments. On 4 April 2018, by the dismissal decision the Tribunal dismissed the application under s.426A(1A)(b) of the Act. The Tribunal stated at [2] of its dismissal decision that, “having reviewed the Tribunal file”, the Tribunal was satisfied that the Applicant had been properly invited to a hearing, the invitation had not been returned to sender, no satisfactory reason had been given for the Applicant’s non-attendance, and no written request for an adjournment had been received. In those circumstances, the Tribunal decided (at [3]) to dismiss the application “without further consideration of that application or the information before the Tribunal.”
Confirmation decision
On 20 April 2018, the Tribunal confirmed the decision to dismiss the review application. In the confirmation decision the Tribunal stated that:
(a)the Applicant had been notified of the prior dismissal decision and given a copy of the written statement setting out the decision and the reasons for the decision in accordance with s.426B(5)(at [3]);
(b)the Applicant has been advised that reinstatement could be sought within 14 days and failure to do so would result in confirmation of the dismissal decision (at [3]);
(c)as the Applicant had not applied for reinstatement within the 14 days period, the Tribunal must confirm the dismissal decision (at [4]); and
(d)in these circumstances, the decision under review is taken to be affirmed (at [4]), and it proceeded to confirm the decision to dismiss the application (at [5]).
Grounds of review
The Applicant filed an amended application on 18 October 2018.
The 3 grounds of review in the amended application are as follows (without alteration, and noting that Ground 3 particulars (ii) and (iii) were not pressed at hearing):
The decisions of the second respondent (the tribunal) dated 4 April 2018 and 20 April 2018 are affected by jurisdictional error because:
1. In its decision dated 4 April 2018, the tribunal failed to consider relevant information, erred in the exercise of its discretion under s 426A of the Migration Act 1958 (Cth) (the Act) or otherwise committed jurisdictional error.
Particulars
(i) In its reasons for decision dated 4 April 2018. the tribunal relevantly stated that:
a. No request had been made in writing for an adjournment (at [2]): and
b. The applicant's review application was dismissed "without further consideration of...the information before the Tribunal" (at [3]).
(ii) Relevant information available before the tribunal included:
a. A filenote dated 23 January 2018 where the applicant’s agent informed the tribunal that the applicant's current whereabouts would need to be confirmed (CB187);
b. An email dated 31 January 2018 from the applicant’s authorised recipient that “we are unable to contact with our client” (CB162)
c. A filenote dated 27 March 2018 indicating that:
i. a receptionist of the applicant's authorised recipient's firm informing the tribunal that the authorised recipient would not be attending the tribunal hearing and the applicant was unable to be contacted:
ii. the receptionist asking the tribunal if rescheduling was a possibility: and
iii. the tribunal informing the receptionist that an adjournment request had to be made in writing (CB188).
(iii) The tribunal failed to consider relevant information or otherwise erred before deciding to dismiss the application under s 426A(1A)(b).
2. In its decision dated 20 April 2018, the tribunal asked itself the wrong question, misapplied or misconstrued the law, or otherwise committed jurisdictional error.
Particulars
(i) In its reasons for decision, the tribunal relevantly stated that as the applicant did not apply for reinstatement of his application within the 14 day Period. the tribunal must confirm the decision to dismiss the application (at [4]).
(ii) The tribunal erred because it misapprehended that s 426A of the Act (which includes s 426A(1E) on which the tribunal relied) did not prevent it from rescheduling the applicant's appearance before the tribunal. or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled: s 426A(2).
3. In its decision dated 20 April 2018, the tribunal failed to consider whether it had complied with s 426B(6) of the Act or otherwise committed jurisdictional error.
Particulars
(i) Section 426B(6) of the Act required the tribunal to provide the applicant with a statement describing the effect of ss 426A(1B) to (IF).
(ii) The Courtbook does not contain a copy of the tribunal's MR20 "Information about dismissal of applications – MR Division" form (MR20).
(iii) The tribunal's correspondence dated 5 April 2018 (CB190‑193) was an insufficient basis on which the tribunal could infer that MR20 had been attached to the tribunal's dismissal decision dated 4 April 2018.
(iv) In its reasons for its decision dated 20 April 2018. the tribunal failed to consider whether it had complied with s 426B(6) of the Act.
(v) The Tribunal’s failure to consider whether it complied with s 426B(6) affected its decision dated 20 April 2018. even if the validity of its non-appearance decision remained unaffected: s 426B(8).
The proceeding in this Court
On 15 June 2018, Ms Garaty, solicitor for the Minister, brought to the Court’s attention that the Applicant is an unaccompanied minor, and requires a litigation guardian, and that his application raised serious allegations against his representative before the Tribunal. At the request of the Minister the matter was set down for a first court date on 20 June 2018 before me. On that occasion, as I have said above, I made consent orders pursuant to s.477(2) of the Act that time be extended to 6 June 2018 for the Applicant to file an application seeking judicial review of the Tribunal’s decisions. I made further orders referring the matter for legal assistance pursuant to r.12.02 of the Rules. I adjourned the proceeding to 13 July 2018 for directions, and subsequently stood over the proceeding to 25 September 2018.
On 10 July 2018, my Chambers received notification that Dr Stephen Tully of counsel had accepted the referral to act pro bono for the Applicant, for which the Court records its thanks. On 25 September 2018, the Court made orders by consent appointing Sister Brigid Arthur as the Applicant’s litigation guardian. The Court records its thanks to Sister Brigid Arthur. I granted leave to the Applicant to file and serve an amended application by 18 October 2018.
At the hearing before me, the Applicant was represented by Dr Stephen Tully of counsel, pro bono, on a direct access basis. The Minister was represented by Mr G Johnson of counsel. Mr Johnson relied on an affidavit of Ms Garaty affirmed 8 November 2018, annexing documents omitted from the Court Book in evidence. I refer to those documents, as relevant to Ground 3, in the course of my consideration of that Ground below.
Information before the Tribunal
In relation to Ground 1, Mr Tully drew attention to information before the Tribunal relating to the Applicant and his circumstances that was contained in, or apparent from material in, the Court Book in evidence before me. Whilst I have already set out some of that information above at [3] and [6] (as to the Applicant’s detention and relocations by the Department), and [8]–[11], I here summarise the information ascertained from the Court Book that was before the Tribunal, before turning to counsel’s submissions on the grounds of review, and my consideration.
At the time of the scheduled hearing on 27 March 2018, and immediately before making the dismissal decision, the material in the Court Book evidences, and I find, that the Tribunal was aware that:
(a)the Applicant was an unaccompanied minor;
(b)in less than a 2 month period since being placed in immigration detention and lodging his application for the Visa the Applicant had been moved by the Department through 3 detention centres in 3 states, and thereafter transferred by the Department from immigration detention in Queensland into community detention in New South Wales;
(c)the Department had specified an address at which the Applicant was to reside in New South Wales (under the strictures of community detention) and informed the Tribunal of that address, but, according to the Tribunal’s case notes dated 22 and 23 January 2018, the Tribunal was aware that the Applicant may have moved elsewhere, and that in communications with the Tribunal the agent indicated he was uncertain where the Applicant was residing;
(c)as at, and from, 31 January 2018, in correspondence to the Tribunal, the migration agent had expressed to the Tribunal his difficulty in being able to contact the Applicant, on 31 January 2018 informing the Tribunal that:
(i)the Applicant had visited the representative’s office “a few weeks ago”, and then informed the office that he is housed in a [Sydney suburb] by the Department;
(ii)“Technically he is detained by the Department to date”; and
(iii)the agent was unable to assist the Tribunal further:
(according to an email dated 31 January 2018 from the agent replying to a query from the Tribunal as to the Applicant’s residential address);
(d)this expression of difficulty to the Tribunal followed on a week of emails from the Tribunal enquiring whether the Applicant was or was not in immigration detention (not being community detention);
(e)when contacted by the Tribunal officer at the time of the scheduled hearing of the review on 27 March 2018, the agent’s receptionist (i) reiterated that the agent had been unable to contact the Applicant, (ii) advised the migration agent was at that time in a meeting in Bankstown, and (iii) enquired about rescheduling the hearing.
I note that the Tribunal correspondence discloses that it had conflicting information in early and mid-January 2018 as to whether the Applicant was held in detention, and if so, where.
Ground 1 - Parties’ submissions
Ground 1 - Applicant’s submissions
By Ground 1 the Applicant contends in relation to the dismissal decision the failure of the Tribunal to consider relevant information, and error in respect of the Tribunal’s exercise of discretion in dismissing the review application, and contends that the Tribunal in making the dismissal decision acted legally unreasonably.
Mr Tully submitted that in the circumstances, the language used in the Tribunal’s dismissal decision – at [2]:“having reviewed the Tribunal file”, and at [3]:“without further consideration of information before the Tribunal”, does not demonstrate careful consideration of the Applicant’s particular circumstances which were known to the Tribunal, and in particular the information that the Applicant could not be contacted by his appointed representative. Relevant information was not considered.
Mr Tully acknowledges the Full Federal Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs vSZFHC (2006) 150 FCR 439; [2006] FCAFC 73 (see decision at [39]), that the Tribunal is not obliged to search its papers and so discover that there was some other way of communicating with an applicant, has resonance with the Applicant’s circumstances as there was a postal address on file at which the Applicant could be reached. However, Mr Tully notes that this decision should be treated with caution as it did not deal with the exercise of discretion under s.426A(1A)(b). Ultimately, Mr Tully submits the first part of Ground 1 is whether the Tribunal, on the balance of probabilities, considered the information it had, before making the decision.
The alternative options to dismissing the application available to the Tribunal in the circumstances of non-attendance at hearing include making a decision on the substantive application without the applicant appearing (s.426A(1A)(a)), as well as rescheduling the hearing (s.426A(2)). Where these options are available, and in light of evidence that there was known difficulty in contacting the Applicant (see [34] above), Mr Tully submits that dismissing the application without further consideration (per s.426A(1A)(b)), demonstrates the Tribunal did not consider the information obtained by it when making its decision.
Specifically, in relation to legal unreasonableness, Mr Tully submitted that in the circumstances of this Applicant, the efforts taken by the Tribunal previously to ascertain the address of the Applicant should have been utilised when he failed to appear (which efforts included communicating with the Department as to, and obtaining information of, the Applicant’s detention status, and whereabouts), and contacting the Applicant by those newly discovered means, and in not doing so, the Tribunal materially erred by dismissing the application in its exercise of discretion.
Mr Tully submits that the Applicant’s circumstances are analogous to the case of AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144; [2015] FCA 1383. In that case, the Tribunal there had available to it at the scheduled hearing a mobile phone number for the applicant which they did not utilise, and which North ACJ stated (at [26]) was an elementary common sense step to take.
As Mr Tully acknowledged, and Mr Johnson reiterated, whether the decision of the Tribunal made in the exercise of its statutory power – in the present case, in the exercise of the power permitted it by s.426A(1A)(b), is legally unreasonable, or materially affected by unreasonableness, is invariably fact dependent. It requires a careful evaluation of the evidence in the particular case, and accordingly past decisions provide limited guidance.
Mr Tully drew attention to the decision of the High Court in Minister for Immigration and Border Protection v SZVFW(2018) 246 CLR 541; [2018] HCA 30, submitting that their Honours’ reasons show that the behaviour of an applicant in their engagement (or non‑engagement) with the Department in the course of their application, as well as before the Tribunal, are relevant (see Kiefel CJ at [9], Gageler J at [70], Nettle and Gordon JJ at [121]-[122], and Edelman J at [138], [140]).
As I have stated above, Mr Tully relies on the information about the Applicant’s particular circumstances that was before the Tribunal at the time of the scheduled hearing (see [34] above), and submits that the information indicates that the Tribunal was aware that there was:
(a)uncertainty about the Applicant’s location;
(b)a difficulty being able to contact the Applicant expressed to the Tribunal on 31 January 2018 by the Applicant’s representative (to whom the Tribunal’s correspondence and ultimately the dismissal decision would be communicated), the representative expressing his regret to the Tribunal that he was unable to provide further assistance; and
(c)difficulty in contacting the Applicant persisting to the day of the scheduled hearing – a receptionist of the representative’s firm then reiterating to the Tribunal that the Applicant could not be contacted, and the agent was at another meeting; and that receptionist inquiring about the possibility of rescheduling.
Mr Tully submits that in the present case, in those circumstances, the Tribunal should have considered potential reasons for the Applicant’s non-appearance.
Mr Tully submits that the Tribunal’s exercise of discretion was legally unreasonable. As Judge Lucev has stated in this Court, in EVZ17 v Minister for Immigration & Anor [2018] FCCA 1245 at [17], (emphasis added):
… When the Tribunal opts to exercise the discretion under s.426A(1A)(b) of the Migration Act, it must have complied with the procedural fairness requirements under s.425 of the Migration Act when inviting the applicant to appear at a Tribunal hearing, and the discretion must also be exercised reasonably as a condition of the valid discharge of the Tribunal’s decision-making power: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181.
Mr Tully submits that the Tribunal proceeding under s.426A(1A)(b) of the Act in light of the Applicant’s particular circumstances known to the Tribunal (which circumstances took the Applicant out of the ordinary – c.f., the respondents in SZVFW) demonstrates there was no weighing process of competing considerations, and as such, the Tribunal erred in the exercise of its discretion. Following a careful consideration of the relevant circumstances of this particular case, the exercise of the discretion to proceed under s 426A(1A)(b) was not reasonably open to the Tribunal in arriving at the dismissal decision on 4 April 2018.
Ground 1 - Minister’s submissions
Mr Johnson, counsel for the Minister, argues that Ground 1 is ultimately an argument about a failure by the Tribunal to have properly exercised its discretion pursuant to s.426A by failing to take into account all the information before it. He acknowledges the Applicant’s various changes of address whilst in detention.
Mr Johnson submits that the documents before the Tribunal demonstrate that the Applicant had some contact with his migration agent, but acknowledges that at certain points in time, the migration agent was having difficulties getting in touch with the Applicant, and communicated those difficulties to the Tribunal.
Mr Johnson submits, and I accept, that the appointment of the migration agent (Mr Khan) is evident from the material before me. As there was a migration agent appointed, the Tribunal was entitled to correspond with the migration agent as the point of contact for the Applicant. Thus, Mr Johnson submits, the power under s.426A is enlivened because the Tribunal sent the relevant information to the address that the Act requires it to be sent to, noting that the nominated email address was in effect varied by the Applicant’s migration agent (allowed under s.441G(3A) of the Act), and that varied address was then the address to which the information was sent.
Mr Johnson further submits that the Tribunal, by taking an additional step of ascertaining the migration agent’s alternate email address when receiving the bounce-back email (see above at [9]) would result in them twice fulfilling their obligations under ss.425A and 441G. (I interpose here that this is operating under an assumption that it was not the Tribunal’s server which failed to transmit). Mr Johnson submits that the mere fact that the Tribunal had sent the invitation to attend the hearing to the nominated email address was enough to satisfy their obligations, regardless of whether a “bounce-back” is received.
In relation to legal unreasonableness, Mr Johnson submits that on the material before the Tribunal, it was within the scope of the power to dismiss the application. Mr Johnson submits that it is not a requirement of the Act that the Tribunal be satisfied that an applicant has actual receipt of an invitation to attend a hearing before the Tribunal. In sending the invitation (letter dated 8 February 2018 with the same content as a letter dated 7 February 2018 that was not transmitted), the Tribunal relied on credible information from the Applicant’s migration agent that the Applicant was in Sydney, and that the agent had been in contact with him in the past month (apparently on about 22 January 2018, according to the Tribunal’s case notes, although I observe this ignores the advice to the contrary received by email by the Tribunal on 31 January, 2018, and reiterated by the receptionist to the Tribunal officer on 27 March 2018).
Mr Johnson submits that the Tribunal invited the Applicant through the required avenues, based on the information it had, notwithstanding the difficulties that the migration agent may have had in turn in contacting the Applicant. The Tribunal was not under a duty to ensure that the Applicant received the invitation, and to have achieved that end by way of sending the invitation letter to a different address, or find another way of contacting the Applicant.
Accordingly Mr Johnson submits that Ground 1 must fail as the exercise of discretion was not unreasonable.
Ground 2 – Parties’ submissions
Ground 2 - Applicant’s submissions
By Ground 2, the Applicant contends that the Tribunal asked itself the wrong question, misapplied or misconstrued the law, or otherwise erred in the confirmation decision dated 20 April 2018.
In its reasons for decision at [4], the Tribunal stated that, because the Applicant did not apply for reinstatement of his application within the 14 day period, it must confirm the [dismissal] decision to dismiss the Visa application.
The Tribunal’s language reflected s.426A(1E) of the Act, which provides that, if an applicant fails to apply for reinstatement within the 14 day period mentioned in s.426A(1B), the Tribunal must confirm the decision to dismiss the application (provided that the dismissal decision is valid).
Mr Tully submits that s.426A(1E) must be read subject to s.426A(2) (see above at [22]). Although the precise interaction between ss.426A(1E) and 426A(2) is unclear, he submits the provisions ought to be read harmoniously so that effect is given to both sections. Consistent with that approach, Mr Tully submits that, to give effect to s.426A(2), the Tribunal ought to have considered whether the Applicant's appearance ought to have been rescheduled, or whether to delay its decision.
The Tribunal's failure to mention the possibility of either rescheduling the hearing, or delaying its decision, in its reasons for its confirmation decision indicate a failure to consider a question, a misunderstanding of the applicable law or a failure to have regard to a relevant matter, namely s.426A(2).
Ground 2 – Minister’s submissions
In relation to Ground 2, Mr Johnson submits that s.426A(1E) is plainly a mandatory direction, or statutory command, that requires the Tribunal to confirm the decision to dismiss in circumstances where an applicant fails to apply for reinstatement within the required time (14 days) following a dismissal decision. Whether that power exists depends upon whether the dismissal decision was valid, and the appropriate lapse of time.
Mr Johnson submits that the Applicant’s contention that s.426A(1E) of the Act must be read subject to s.426A(2) should not be accepted. The Act does not so provide. Section 426A(2) provides rather that s.426A does not prevent the Tribunal from rescheduling 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 rescheduled. On the face of the provisions, there is no incongruity between s.426A(1E) and s.426A(2) such that one needs to be read ‘subject to’ the other. Section 426A(1E) requires in clear terms that the Tribunal confirm the decision to dismiss the application if the Applicant fails to apply for reinstatement of an application dismissed under s.426A(1A)(b).
Mr Johnson characterises the Applicant’s argument as being the Tribunal was required to consider exercising its discretion to reschedule the Applicant’s appearance before it, or to delay its decision on the review in order to enable the Applicant to appear before it. However, even accepting the Tribunal has these powers, he submits such powers are discretionary. As the sub-heading before s.426A(2) states, the sub-section provides that there are available to the Tribunal “Other measures to deal with failure of applicant to appear”, not that the Tribunal was required to consider those measures, nor that the Tribunal was required to give reasons why it was not inclined to reschedule the hearing or to give the Applicant a further opportunity to appear.
Mr Johnson submits that there was no misunderstanding of the relevant provisions by the Tribunal, or any jurisdictional error in the Tribunal’s approach.
Ground 3 – Parties’ submissions
Ground 3 – Applicant’s submissions
By Ground 3, the Applicant contends that the Tribunal failed to consider whether it had complied with s.426B(6) of the Act, or otherwise committed jurisdictional error.
Mr Tully submits that the inclusion of the word “must” in s.426B(6) means that in a confirmation of dismissal decision (that is, the confirmation decision made 20 April 2018) the Tribunal must necessarily be satisfied of certain things, and in particular, whether or not an applicant has been given a statement describing the effect of each of sub‑ss.426A(1B)-(1F). These are necessary statutory preconditions for which the Tribunal must in fact reach an appropriate state of satisfaction. The Tribunal cannot be taken to have reached that state of satisfaction if it does not consider each precondition. The Tribunal does not consider anywhere in its reasons whether the Applicant was given a “statement” which describes the effect of the provisions.
Mr Tully accepts that the Tribunal satisfied itself of s.426B(5) by its having given the Applicant a copy of the written statement of the dismissal decision, of s.426A(1B) (at [3] of its decision), and that the Applicant could accept that the Tribunal considered whether he had been advised that a reinstatement application could be made within 14 days (s.426A(1B), at [3]), what occurs if an applicant fails to apply for reinstatement (s.426A(1E), at [3]), and what happens if the Tribunal confirms the decision (s.426A(1F), at [4]).
However, the Tribunal did not consider whether the Applicant had been notified about the effect of s.426A(1C) or (1D), that is, what the Tribunal must do if a reinstatement application is made, and what happens if the Tribunal reinstates the application – namely, that the dismissal decision is taken never to have been made). The Tribunal’s reasons do not reveal any consideration of whether a statement describing the effects of those sub-sections had been provided to the Applicant.
Section 426B(8)(b) provides the validity of a non‑appearance decision (that is, the first decision - dismissal) is not affected by a failure to comply with sub‑sections (5), (6) or (7) (relevantly, sub‑s.(6)). Mr Tully submits that this would suggest that the validity of a dismissal decision is not affected by a failure to inform an applicant of a statement describing the effect of those subsections. It does not provide for the validity of a confirmation decision in those circumstances.
Mr Tully submits that in a confirmation decision, the Tribunal should have considered whether, and must be satisfied that, the Applicant was provided with a statement describing the effect of reinstatement, as well as a copy of the decision. He accepts that Ms Garaty’s affidavit evidence on behalf of the Minister (which was that the MR20 form “Information about dismissal of applications – MR Division” had been overlooked for inclusion in the Court Book, but that a copy of the form had been included in the Tribunal file, indicating that it had been attached to the notification of the dismissal decision) could be construed beneficially to infer that there was evidence before the Tribunal that the MR20 form was provided to the Applicant (by provision to Mr Khan) with the statement of dismissal decision.
He submits that whilst that finding may have been open to the Tribunal, the Tribunal’s reasons do not demonstrate that they were satisfied of that matter (nor that they even considered the matter). Ms Garaty’s evidence does not displace the fact that the Tribunal’s confirmation decision that would show that this matter had been considered does not do so.
Ground 3 – Minister’s submissions
Mr Johnson observes the Applicant appears to accept on the basis of the affidavit of Ms Garaty that the Tribunal’s correspondence to the Applicant, sent to his migration agent by email, attached a copy of the MR20 form in compliance with s.426B(6).
In his written submissions Mr Johnson submits that whether the Applicant was notified of the confirmation decision (it was clear from oral submissions that Mr Johnson means the dismissal decision) in accordance with statutory requirements was not a matter for the Tribunal to consider, or be satisfied about in the confirmation decision. Rather, he submits that it is a legal requirement, and a question of jurisdictional fact for the Court to determine.
Mr Johnson submits that on the basis of the evidence, in particular Ms Garaty’s affidavit and annexures, the Court would be satisfied that the Tribunal notified the Applicant of the dismissal decision in accordance with the Act, in particular the requirements of s.426B(6).
Consideration
Ground 1 - consideration
Section 441G(1) of the Act states that where an authorised recipient is notified by the applicant to the Tribunal, the Tribunal “must” give an authorised recipient any documentation, “instead of the applicant”, that an applicant would otherwise receive. As a migration agent was appointed by the Applicant – Mr Khan – and the Applicant had not notified the Tribunal that he had varied or withdrawn that appointment, in the ordinary course the Tribunal was required to correspond with the migration agent, instead of the Applicant. I note however, that sub‑s.441G(2) qualifies this requirement: “However, this does not prevent the Tribunal giving the applicant a copy of the document.”, which course the Tribunal did not take, notwithstanding it had a postal address for the Applicant, and was notified by the agent that the agent expressed an inability to contact the Applicant, and an uncertainty (as at late January 2018) as to where he was living.
Whilst sub-s.441G(2) permits the Tribunal to communicate with an applicant, it is apparent that the Tribunal notified the Applicant in the manner allowed under s.441G(3A) of the Act (which provides that the authorised recipient may vary their address). In these circumstances, the requirement of notification pursuant to s.426A(1)(a) was satisfied.
The statutory discretionary power conferred by s.426A is conditioned by the requirement that it be exercised reasonably: SZVFW, per Kiefel CJ at [4] observing that s.426A is in the nature of a discretion, and like any statutory discretionary power, it is subject to the presumption of the law that the legislature intends the power to be exercised reasonably, Gageler J at [53] explaining that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power (and see also at [65]), and Nettle and Gordon JJ at [80], and Edelman J at [132].
In SZVFW, the High Court, in the circumstances of the respondents’ failure to respond to the Tribunal’s invitations (and earlier not participating in the hearing before the delegate), and having regard to the statutory context of s.426A(1), unanimously held that the Tribunal’s decision to proceed in the absence of the respondents was not unreasonable. Their Honours variously referred to the legal and particular factual context in which the Tribunal exercised the power permitted it by s.426A(1A)(b): e.g., Kiefel CJ at [9], [14], Gageler J at [70], Nettle and Gordon JJ at [82]-[84], [118]-[123], and Edelman J at [138], [141].
Thus the task of the Court is to ask whether the exercise of power by the Tribunal was beyond power because it was legally unreasonable. I bear in mind that the Court does not undertake merits review of the Tribunal’s exercise of the discretionary power given in s.426A(1A). The task is to determine whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (see SZFVW, per Nettle and Gordon JJ at [82]).
As I have stated above, in this particular case:
(a)the Applicant was an unaccompanied minor;
(b)the Applicant had participated in the hearing before the Delegate;
(c)in less than a 2 month period upon being removed into immigration detention, and shortly after being interviewed by the Delegate, the Applicant had been moved through 3 detention centres in 3 states, then transferred into community detention in New South Wales, and then apparently had moved residence;
(d)the Department had specified the address at which the Applicant was to reside (under the strictures of community detention), and as at 10 January 2018, the Tribunal was informed by the Department of that address;
(e)as at 22 – 23 January 2018, as expressed to the Tribunal, the agent appeared to be under some uncertainty about where the Applicant was residing;
(e)as at, and from, 31 January 2018, the migration agent had advised the Tribunal he had been unable to contact the Applicant, which inability was subsequently reiterated to the Tribunal on the day of the hearing by the agent’s receptionist.
The evidence establishes that the Tribunal was aware of the above matters, including from its previous interactions with the Department that the Department had placed the Applicant in community detention and specified the address at which the Applicant was required to reside in such detention.
As the High Court reiterated in SZFVW, the Tribunal’s discretion must be exercised reasonably as a condition of the valid discharge of the Tribunal’s decision-making power. Given the above known circumstances of this particular applicant, as an unaccompanied minor, I consider that the Tribunal’s language of “having reviewed the Tribunal file” does not demonstrate careful consideration of the Applicant’s particular circumstances, and does not evidence any weighing of competing considerations before it proceeded under s.426A(1A)(b).
The Applicant’s particular circumstances took him out of the realm of the ordinary. In the particular circumstances of and concerning this Applicant, known to the Tribunal and which I have set out above, the Tribunal exercised its discretion unreasonably by proceeding on the day of the hearing in the absence of the Applicant to dismiss the matter under s.426A(1A)(b) of the Act.
It follows that I find that Ground 1 is made out.
Ground 2 - consideration
Section 426A(1E) on its face requires that the Tribunal must confirm the decision to dismiss where the applicant fails to appear at the Tribunal hearing, 14 days have elapsed, and the applicant has not applied for reinstatement in that time.
Section 426A(2) is a discretionary provision, which ensures that if the Tribunal believes it prudent, for whatever reason, to relist the applicant’s appearance before it, then it has the power to do so. The applicant is given an opportunity to appear before the Tribunal before the Tribunal decides the review, further to an invitation under s.425 of the Act. In my view s.426A(2) is concerned with that opportunity given to an applicant to appear before the Tribunal to be heard on the review, and gives the Tribunal the power to reschedule the occasion of that appearance, or delay deciding the review until that rescheduled appearance has occurred.
The provision is thus directed to the Tribunal’s discretionary powers to be exercised before the Tribunal makes its decision pursuant to sub‑s.426A(1A) at, or following upon the scheduled hearing in circumstances of an applicant’s non‑appearance. The provision does not empower the Tribunal in the later circumstances to which sub‑s.426A(1E) are directed, when there is no occasion for the applicant to appear, that is, after the Tribunal has acted pursuant to sub.s.426A(1A), and 14 days has lapsed without the Applicant applying for reinstatement.
I consider that there is nothing in s.426A that demonstrates that reading sub‑s.426A(1E) and sub‑s.426A(2) together is required.
However, I have found that the Tribunal in making the dismissal decision exercised its discretion unreasonably. That decision is invalid. It follows that the confirmation decision was invalid.
Should I be wrong on my conclusion on Ground 1, I do not consider that any error as contended by the Applicant in Ground 2 has been demonstrated. Ground 2 is not established.
Ground 3 - consideration
Section 426B(6) requires that a copy of the dismissal decision must be given to the Applicant within 14 days of the date of the decision together with a statement describing the effect of subsections 426A(1B) to (1F).
Annexed to Ms Garaty’s affidavit at annexure B is a copy of the email dated 5 April 2018 to Mr Khan enclosing letter to Mr Khan, and as attachments enclosed letter to the Applicant, dismissal decision and MR20 form. On the face of the documents emailed to Mr Khan I accept that it is reasonable to infer from Ms Garaty’s affidavit that a copy of the MR20 form was emailed to the Applicant’s then authorised recipient with a letter to the Applicant and a copy of the dismissal decision.
On the basis of Ms Garaty’s affidavit, specifically Annexure B to that affidavit, I am satisfied that the Applicant’s nominated migration agent was notified of the dismissal decision pursuant to s.426B(6). On reading the attached MR20 form I am satisfied that under the subheading “What happens if an application is dismissed?” the effect of sub‑ss.426A(1B) to (1F) were explained in English.
Thus, I find, as a jurisdictional fact, that the requirements of s.426B(6) were satisfied in the present case. I accept Mr Johnson’s submission that satisfaction of those requirements is a matter for the Court, not the Tribunal.
However, as I have found that Ground 1 is made out, and the dismissal decision is invalid, it follows that the confirmation decision is invalid.
Should I be wrong on my conclusion on Ground 1, I do not consider that any error as contended by the Applicant in Ground 3 has been demonstrated. Ground 3 is not established.
Conclusion
For the reasons that I have set out above, I have concluded that the Tribunal fell into jurisdictional error. It follows that the writs sought must issue and the Tribunal should proceed to conduct the review of the Delegate’s decision according to law. In the ordinary course, costs will follow the event, to the extent that the Applicant has incurred compensable costs.
I will so order.
Other matters
On 31 March 2020 I became aware from news reports issued by the Australian Broadcasting Corporation that the Federal Court of Australia, which acts as the Registry for this Court, and provides such registry and administrative services as the Court has, had committed a major data breach publishing on the publicly available Commonwealth Courts Portal details of a significant number of applicants in proceedings for judicial review, cross referenced to their pseudonyms and to the decisions regarding their applications for judicial review delivered by judges of this Court. It appears that at present the Commonwealth Courts Portal has been disabled so as to prevent any continuance or further occurrence of the breach.
In these circumstances, pursuant to s88H of the Federal Circuit Court of Australia Act 1999 (Cth) I propose to make a non-publication order and orders suppressing the orders I make, these reasons, the name and pseudonym of the Applicant, and the fact of this decision, such order to continue to have effect until the expiration of 7 days, or such earlier time as I am informed by the parties that it is not necessary that the orders continue.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 17 April 2020
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