Dae17 v Minister for Immigration - [2018] FCCA 2236

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAE17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2236

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – where Applicant failed to attend Tribunal hearing – whether Applicant was properly notified of the Tribunal hearing – whether Tribunal acted unreasonably – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 425A, 426A, 426B, 441A, 441C

Cases cited:

AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144
Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64.
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550

MZALO v Minister for Immigration and Border Protection [2016] FCA 1339
SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159

Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172

Applicant:

DAE17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1447 of 2017

Judgment of:

Judge Hartnett

Hearing date:

6 August 2018

Delivered at:

Melbourne

Delivered on:

6 August 2018

REPRESENTATION

The Applicant:

In Person

Counsel for the First Respondent:

Mr Yuile

Solicitors for the First Respondent:

Mills Oakley Lawyers

ORDERS

Application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1447 of 2017

DAE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Before the Court is an application filed on 5 July 2017, wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) of 13 June 2017 to affirm a decision of a delegate of the First Respondent (‘the delegate’) to refuse the Applicant a protection visa after the Applicant failed to attend a scheduled hearing. On 6 July 2017, the Tribunal confirmed the decision to dismiss the application.
The grounds of judicial review application are relevantly as follows:-
“…
AAT Decision
The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 13 June 2017 at 9.30 am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. 2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 2236
Decision Date: 6 August 2018

CaseChat Overview and Summary

Dae17 (the Applicant) sought judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) concerning an application for a protection visa. The Applicant had failed to attend the scheduled Tribunal hearing.

The central legal issues before the Federal Court were whether the Applicant had been properly notified of the Tribunal hearing and whether the Tribunal had acted unreasonably in proceeding with the hearing in the Applicant's absence. The Applicant contended that these failures constituted jurisdictional error.

Justice Hartnett found that the evidence established that the Applicant had been properly notified of the hearing date and time. The Court held that the Tribunal was entitled to proceed with the hearing in the Applicant's absence, as there was no jurisdictional error in its conduct. The Applicant's failure to attend, without a valid explanation or request for adjournment, meant the Tribunal was not required to further investigate the Applicant's claims.

The application for judicial review was dismissed.

Orders