CZD18 v Minister for Home Affairs

[2019] FCCA 462

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZD18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 462

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant to him a protection visa – no adequate explanation or reason given by the applicant for non-appearance at Tribunal hearing – decision of Administrative Appeals Tribunal to proceed to dismiss review application in the absence of the applicant under s.426A of the Migration Act 1958 (Cth) did not lack an intelligible justification and was not irrational or legally unreasonable in the circumstances – applicant did not respond to invitation to reinstate his review application – Administrative Appeals Tribunal decisions not otherwise affected by jurisdictional error – application for judicial review dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.2A
Migration Act 1958 (Cth), ss.425, 425A, 426, 426A, 427, 441A, 441G

Migration Regulations 1994 (Cth)
Federal Court Rules 2011, r.36.03(b)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98
Minister for Immigration and Border Protection v Pandey [2014] 143 ALD 640
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Ponugotti v Minister for Immigration and Border Protection (2015) 144 ALD 365

Applicant: CZD18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1612 of 2018

Judgment of: Judge Dowdy

Hearing date: 15 February 2019

Delivered at: Sydney

Delivered on: 15 February 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms A. Zinn

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 7 June 2018 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,400.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant has up to and including 20 March 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1612 of 2018

CZD18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)

Introduction

1. The Applicant is a male citizen of Taiwan aged 36 years, having been born on 15 October 1982. 

2. By Application filed in this Court on 7 June 2018, he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 15 May 2018 made under s.426A(1)(b) of the Migration Act 1958 (Cth) (the Act), to dismiss for non-appearance on that date his application for merits review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 13 July 2017 refusing to grant to him a Protection (Class XA) (subclass 866) visa (Protection visa).

3. The Applicant arrived in and departed from Australia on seven occasions between 18 April 2011 and 14 April 2016 as the holder either of a Working Holiday (Class US) (Subclass 417) visa or a Student (Class TU) (Subclass 572) visa.  He last arrived in Australia on a Visitor (Class TV) (Subclass 601) visa on 9 December 2016, and he applied for the Protection visa on 6 March 2017.

Applicant’s Claims for Protection

1. In his Protection visa application form, the Applicant claimed verbatim as follows:

   Due to I took part in protest activities I was persecuted by the police and faced with life risk.  A strong earthquake caused the 17 layers of residential building collapsed, killing at least three people.  My cousin lived in the residential building, the earthquake also triggered a number of fires.  But due to the government disaster relief slowly and firefights can not reach the designated position, my cousin and other residents suffer serious property losses and both physically and mentally.

   After my cousin’s body became better, my cousin and other residents began to protest activities together.  Because I and my cousin contacted frequently I came to my cousin home and went to protest with her.  Also we wriote an open letter to express the dissatisfaction to the government.  However, our behaviour was persecuted by the local government.  Some protesters were caught by the police.  My cousin and other protestors were caught into the prison.  I was not home, so I survived.  I heard that the police forced other protestors’ whereabouts. 

   Currently, the police said that they won’t leave us alone.  I was very scared.  Please seek Australian government protection. 

   The whole situation of Taiwan is the same – the police and government officials colluded with each other. They only care their own benefits.  If I go back to Taiwan I will suffer persecution from the police.  They colluded with the officials of government.  The government is their protective umbrella.  Police and government officials are colluded with each other and only care their own benefits.

2. I note that in his Protection visa application form he gave a nominated email address of a Mrs Smith (a pseudonym) for receipt of correspondence from the Department of the Minister (nominated email address).

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7] Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. By his Decision Record dated 13 July 2017, the Delegate refused to grant to the Applicant the Protection visa on the basis of his assessment of independent country information that indicated that protests and demonstrations in Taiwan occur on a regular basis, but they rarely become violent and there were no reports of political prisoners or detainees. The Delegate was not satisfied that the available country information supported a finding that the Applicant would be of any interest to the Taiwanese authorities on the basis of the level of his claimed political activity. The Delegate found that the Applicant was not a refugee for the purposes of the Refugees Convention criterion and that he was not a person in respect of whom Australia had protection obligations under s.36 of the Act.

Decision of Tribunal

1. On 31 July 2017, the Applicant applied to the Tribunal for merits review of the Delegate’s decision and again gave the nominated email address for correspondence from the Tribunal. 

2. By letter dated 27 April 2017, the Tribunal invited the Applicant to a hearing on 15 May 2018.  The letter was sent by email to the nominated email address and advised that the Tribunal was unable to make a favourable decision on the information it then held and expressly informed the Applicant that if he did not attend the scheduled hearing the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before it and might dismiss his application without any further consideration. 

3. The Applicant did not respond to the hearing invitation and failed to attend the scheduled hearing on 15 May 2018. On 15 May 2018, the Tribunal made a decision to dismiss the application without further consideration under s.426A(1A)(b) of the Act. The Tribunal found that the Applicant had been properly invited to attend the hearing in accordance with s.425 and s.441A(5). The Tribunal dismissed the application because the Applicant did not appear at the scheduled time and place for the hearing and provided no satisfactory reason for his failure to appear to the Tribunal.

4. I find that the Tribunal’s invitation to hearing letter of 27 April 2018 was valid under s.425 of the Act in that:

   a)it contained an invitation to the Applicant to appear before it to give evidence and present arguments as required by s.425(1) and s.426(1)(a);

   b)it notified the Applicant that he could give the Tribunal written notice to obtain oral evidence from a person or persons: see s.426(1)(b) and s.426(2);

   c)it notified the Applicant of the specified day, time and place of the hearing as required by s.425A(1);

   d)it was given to the Applicant by one of the means specified in s.441A, namely being transmitted to his authorised recipient by email being an approved method for the Tribunal to give a document to the Applicant as required by s.425A(2)(a);

   e)it complied with s.441A(5) and s.441G by being transmitted to the email address that the Applicant nominated in his application for merits review, namely the nominated email address;

   f)it complied with s.425A(3) by providing the Applicant with a period of time that was at least the prescribed period of 14 days as specified by reg.4.35D of the Migration Regulations 1994 (Cth); and

   g)it complied with s.425A(4) by containing a statement of the effect of s.426A about options available to the Tribunal if the Applicant failed to appear before it.

5. The Applicant was notified of the non-appearance decision of 15 May 2018 by email to the nominated email address on 15 May 2018.  The email attached to the non-appearance decision a letter addressed to the Applicant and an information sheet about dismissal of review applications.  The letter informed the Applicant that he could apply, in writing, for reinstatement of his review application by 29 May 2018, and the information sheet informed him that if he failed to apply for reinstatement within the 14 day period, the Tribunal must confirm the decision to dismiss the review application. 

6. The Applicant did not seek reinstatement or otherwise contact the Tribunal within the specified 14 day period on or before 29 May 2018, and accordingly on 1 June 2018 the Tribunal made a decision confirming the decision to dismiss the application, as it was bound to do by force of s.426A(1E) of the Act.

7. The Tribunal in its decision of 1 June 2018 found that the Applicant had been notified of the dismissal decision of 15 May 2018 and was given a copy of a written statement setting out the decision and the reason for the non-appearance decision in accordance with s.426B(5) of the Act.

8. The Tribunal also found that the Applicant had been advised that he could seek reinstatement of his application within 14 days of receiving the dismissal statement and that a failure to do so would result in confirmation of the decision and that since the Applicant had failed to apply for reinstatement within 14 days, the Tribunal was required to confirm its dismissal decision and that thereby the decision under review was taken to be affirmed: see s.426A(1F) of the Act.

9. Thereafter the Tribunal notified the Applicant of its confirmation decision by email to the nominated email address on 14 June 2018.

Application to this Court

1. The Applicant relied on the following Ground:

   1. I did not attended the AAT’s interview because my body’s was very poor. During that time, I confined to a bed and my friend take care of me. I spent the whole day in a trance so my friend send me to the hospital and see a doctor. I did not know what happened, under that circumstance, I did not remember the hearing of AAT and also unable to inform the AAT why I could not attend the hearing.

   AAT did not give me a chance and the refused my application, it is unfair for me. AAT should examine fully my actual situation, instead of an arbitrary decision. AAT neither giving another opportunity nor due diligence, the tribunal’s decision breached my right to natural justice.

   I believe that Australia is a country which will protect the interests of vulnerable groups, so I fled to Australia to seek help. However, AAT’s attitude was too apathetic and subjective think I can attend the hearing. AAT did not consider my practical situation, which is really not human.

Consideration

1. I shall take the Ground as asserting and attacking as legally unreasonable the Tribunal’s decision under s.426A(1)(b) of the Act to dismiss the application for review without any further consideration and also for more abundant caution the confirmation decision of 1 June 2018. The exercise of a discretionary power of such a kind is subject to judicial scrutiny in order to determine whether it was exercised in a legally unreasonable way: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Under s.427(1)(b) of the Act, the Tribunal has the power to adjourn a review from time to time. The Tribunal is exhorted by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a way that is “fair, just, economical, informal and quick”.

2. However, these discretionary powers to adjourn a hearing or to proceed with a hearing and to operate economically, informally and quickly and must be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.414 of the Act to review decisions and give the relevant applicant a meaningful opportunity of a real chance to appear and to present evidence and arguments pursuant to the invitation extended under s.425.

3. In my view, the Tribunal’s decision to dismiss on 15 May 2018 was not legally unreasonable and it did not “lack an intelligible justification” nor was it “irrational” or “illogical”. In particular, this is the case because eo instanti it afforded to the Applicant the opportunity to seek reinstatement of his review application within 14 days.  In my view, the Tribunal gave the Applicant more than sufficient opportunity to argue and propound his merits review application.  The hearing date of 15 May 2018 was, in the words of Hill J in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 at 102 [14] “one of the most important appointments in [his] life”. The Applicant was under a personal responsibility to attend in aid of his application for review if he was not precluded for good reason.  As Barker J in Ponugotti v Minister for Immigration and Border Protection (2015) 144 ALD 365 said at 372 [56], referring to proceedings before the then Migration Review Tribunal:

   [56]What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.

4. In my view, it could not be said that no rational or logical decision-maker could have arrived at the decisions which the Tribunal reached in this case. There was an intelligible justification for the Tribunal deciding to proceed in the way that it did because it “had a genuinely free discretion” and freedom “to make the decision” and in that regard its decision did not fall outside of the range of possible acceptable outcomes: see Wigney J in Minister for Immigration and Border Protection v Pandey [2014] 143 ALD 640 at 650 [52].

5. The Applicant could have availed himself of the opportunity to seek reinstatement but failed to do so and remained unresponsive.  Further, in this Court the Applicant has not provided any lay or medical evidence to corroborate why he could not appear at the Tribunal on 15 May 2018.  There is no report from a hospital or doctor as to his medical condition on 15 May 2018 although the ground asserts that he went to a hospital and saw a doctor.  He does not identify any specific medical condition of which it is said that he was suffering on 15 May 2018.  There is no evidence indicating that he could not meaningfully participate in the Tribunal hearing either in person or over the telephone. 

6. There is no probative evidence explaining why the Applicant did not contact the Tribunal to seek an adjournment of the hearing scheduled for 15 May 2018 or why he could not have asked his friend, referred to in the Ground, to ring or contact the Tribunal to seek an adjournment. Finally, no explanation is given as to why he did not seek reinstatement from the Tribunal. He does not allege that he was sick within the 14 day period in which he was able to ask the Tribunal to reinstate his merits review application. Accordingly, in my view the Tribunal complied with its obligations under ss.425, 426A and s.426B of the Act.

Conclusion

1. In my view, the Applicant has failed to establish that either of the decisions of the Tribunal are affected by jurisdictional error.  The Tribunal was in fact legally bound to make the decision confirming its earlier dismissal as there had been no application for reinstatement. The Application made to this Court is accordingly to be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  27 February 2019