Dae17 v Minister for Immigration
[2018] FCCA 2236
•6 August 2018
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 MZALO v Minister for Immigration and Border Protection [2016] FCA 1339 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 was about the hearing. No satisfactory reason for the non-appearance has been given. 3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The applicants disputes that any invitation to attend a hearing was ever received, and that the Tribunal further acted unreasonably in exercising its discretion because there were unresolved areas of concern to the Tribunal which it failed to take any steps to resolve by contacting the applicant on the day of the hearing and inviting the applicant to appear
The High Court in Li, the s 362B discretion is conditioned by a requirement that it be exercised reasonably. This proposition is also inconsistent with the terms of s 362B itself, especially s 362B(2), which expressly contemplates that there will be matters the Tribunal may take account of to reschedule a hearing.
Obviously one such matter might be the fact that a review applicant did not receive a hearing invitation
In consideration that applicant declares they had not received any hearing invitation either in the written form, nor text message nor has there been any missed calls and or voicemail messages to the applicant, I the applicant dispute the decision are argue that the Tribunal has not adhered to the appropriate legislation namely 362B(2), which expressly contemplates there will be matters the Tribunal may take account of to reschedule a hearing and ask the Federal Circuit Court to quash the Tribunals decision”
(Errors in original.)
Background
The Applicant is a citizen of Malaysia who applied for a protection (Class XA) (subclass 866 visa) (‘the visa’) on 14 July 2016. A bridging (Class XA) visa was granted to the Applicant to enable her to remain in Australia during the processing of her application for the visa. The Applicant had arrived in Australia from Malaysia on a UD-601 electronic travel authority visa on 17 April 2016. Approximately three months later she applied for the visa.
A summary of the Applicant’s claims for protection are as set out in paragraph 4 of the protection visa assessment of the delegate of 8 December 2016 and are as follows:-
“Malaysia’s economic situation is severe enough. The pressure of living is increasing, all the people are beginning to find a way out because the existing government has not changed the current situation and the situation becomes worse from day to day. The Malaysian Ringgit is even worse compared to USD and she took action. She and several friends made an open protest to the government of Malaysia (GoM). Because of this there were orders that they should be arrested and imprisoned. Many ‘Yellow Shirt’ protests were to wake the GoM, but people were not given a chance to get up and protest about the situation. She came to Australia for protection and to live under a more democratic government.
If she returns to Malaysia she will be imprisoned. The GoM authorities will find her anywhere and it would not be safe. She will not have any protection or justice.”
The delegate found the Applicant not to be a person in respect of whom Australia had protection obligations as set out in ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).
The delegate considered relevant and extensive country information. The delegate found the Applicant had not provided any additional detail to support her claims, and nor had she provided any documentary or other evidence to support a claim that she held any political beliefs or affiliations. Because of the lack of supporting material, and in light of the country information, the delegate did not accept there was a real chance of the Applicant being persecuted in Malaysia.
The Applicant lodged an application for review with the Tribunal on 22 December 2016. The Applicant specified her contact email address in that application. She attached the Departmental notification to her of the delegate's decision, and the delegate's decision to the application.
On 23 December 2016 the Tribunal acknowledged receipt of the Applicant's application for the visa with such acknowledgment being sent to the email address provided by the Applicant in her application for merits review.
On 23 May 2017 the Tribunal sent to the Applicant an email attaching an invitation to attend a hearing. The email was sent to the email address that the Applicant specified in the application. The invitation noted that the Tribunal had:-
“…considered the material before us but we are unable to make a favourable decision on this information alone.”
The Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues in her case on 13 June 2017 at a given time and location. The invitation noted that a decision on the review could be made by the Tribunal without taking any further action if the Applicant failed to attend the hearing. That action included that the Tribunal may dismiss her application for review without any further consideration of the application or the information before the Tribunal. Attached to the invitation to attend a hearing were documents from the Tribunal titled, “Information about hearings - MR division” and “Response to hearing invitation - MR division”.
On 13 June 2017 the Tribunal held a hearing but the Applicant failed to attend.
On 14 June 2017 the Tribunal sent an email to the Applicant, to the email address she had specified in her application, attaching a notification of decision to dismiss the application pursuant to s.426A(1A)(b) of the Act.
The notification of decision to dismiss the application noted, relevantly, the following:-
“As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 28 June 2017. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.”
The non‑appearance decision of the Tribunal stated that:-
(a)the Applicant had been invited to a hearing pursuant to s.425 of the Act;
(b)the Tribunal had sent SMS reminders to the Applicant about the hearing five days and one day before the scheduled hearing;
(c)the review Applicant did not appear before the Tribunal;
(d)after reviewing the Tribunal file, the Tribunal was satisfied that the Applicant had been properly invited to a hearing in accordance with s.441A(5); that the invitation had not been returned to sender; that two separate SMS reminders were also sent to the review Applicant about the hearing; and that no satisfactory reason for the non‑appearance of the Applicant had been given; and
(e)the Tribunal therefore decided to dismiss the application without further consideration of the matter.
On 30 June 2017 the Tribunal received from the Applicant a blank email. The Tribunal officer asked the Applicant to resend the email but nothing further was received.
On 5 July 2017 the Applicant applied for judicial review of the decision made on 13 June 2017.
On 7 July 2017 the Tribunal sent to the Applicant an email attaching a further decision of the Tribunal to confirm the decision to dismiss the application. That decision of 6 July 2017 noted, as set out in paragraph 4 of the Statement of Decision and Reasons (‘the Decision Record’) that:-
“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.”
These proceedings
The First Respondent seeks dismissal of the Applicant's application for review and that costs follow that dismissal order.
The parties appeared before Registrar Luxton on 7 March 2018 and various procedural orders were made by consent which included that the Applicant file and serve written submissions. The Applicant failed to file and serve any written submissions but was given an opportunity this day to make oral submissions to the Court. The Applicant, prior to the hearing, had translated to her the written submissions of the First Respondent dated 23 July 2017.
At the hearing the Applicant indicated, on two separate occasions, that she did not have anything to say by way of submissions or, indeed, as to any relevant matter concerning her application.
Consideration
In general terms, the Court finds the Applicant was properly notified of the Tribunal hearing; failed to attend; and nothing that the Applicant has put before the Court, or in the evidence before the Court, which includes the materials contained in the Court Book filed 20 March 2018, supports in any way, any alleged unreasonableness on the part of the Tribunal or any other error in the Tribunal decision. More specifically the following is pertinent.
Turning firstly to the issue of notification. The Court is satisfied the Tribunal complied with its statutory obligation under ss.425 and 425A of the Act. The Court accepts that, on the evidence and as put before the Court by Counsel for the First Respondent, the Tribunal file does not contain any file note recording the sending of SMS messages to the Applicant. The Court notes the First Respondent's acceptance that there is no evidence to support the statement of the Tribunal that SMS messages were sent to the Applicant. The Court accepts the First Respondent's submission that the Court should proceed on the assumption that they were not, contrary to the statement in the Tribunal's reasons. The Court does proceed in that manner but notes there is no statutory requirement for the sending of SMS reminder messages. What the Tribunal is required to do is to consider a hearing pursuant to s.425 of the Act and then notify the Applicant of that hearing as set out in s.425A of the Act. That section is as follows:-
“Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.”
Section 441A(5) provides that:-
“ … (5) Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e) if the recipient is a minor--the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.”
In these proceedings it was noted the Tribunal sent the hearing invitation by email to the email address that was specified by the Applicant in her review application. By s.441C(5) of the Act the Applicant was:-
“…taken to have received the document at the end of the day in which the document is transmitted.”
As submitted by Counsel for the First Respondent, it is well settled by the authorities that the use of the phrase “taken to have received” has the effect of deeming the invitation to have been received regardless of whether it was, in fact, received or not.[1]
[1] Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172, 13; Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64, 8; Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550, 69.
The Court finds the Applicant was deemed to have received notification of the hearing on the evidence that is before it. There is no basis for the Applicant to argue as she does, that she was not properly notified of the hearing that she failed to attend.
The Tribunal thereafter went on to notify the Applicant of the decision that it had made and the options that were then available to her in accordance with s.426B of the Act. The Tribunal received no application for reinstatement and thus on 7 July 2017 went on to confirm its decision to dismiss the review pursuant to s.426A(1E). By s.426A(1F), the decision on the review was taken to have been affirmed.
With respect to the allegation of unreasonableness; that is, in all the circumstances of the case did the Tribunal act unreasonably in proceeding to dismiss the application rather than rescheduling it, the Court finds it was open to the Tribunal to take the course that it did. Whilst the Court accepts that the discretion conferred on the Tribunal by s.426A(1A) is to be exercised reasonably, the Court finds no unreasonableness in the Tribunal proceeding as it did.
As submitted by the First Respondent, this was not a case where the Applicant’s behaviour in the review “suggested a close and vital interest in its conduct”.[2] Nothing was provided by the Applicant to the Department or the Tribunal beyond the original claims.
[2] MZALO v Minister for Immigration and Border Protection [2016] FCA 1339, 24.
This was not a case where the Applicant had engaged with the Tribunal by providing a substantial and serious written submission.[3]
[3] AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144, 24.
The Tribunal was not made aware at any stage by the Applicant of any reason for her inability to attend the scheduled hearing or whether, indeed, there was any such inability. The Tribunal complied with s.425A of the Act and:-
“Was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the Applicant.”[4]
[4] Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73, 39.
The Tribunal is not obliged to give more in the way of reasons for its decision than it did.[5]
[5] SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159, 60.
As submitted by the First Respondent, although the Applicant asserts in her grounds of review that there were “unresolved areas of concern”, it is not clear what it is the Applicant is alluding to. The Tribunal did not refer to them and the Applicant has provided no particularisation. The Applicant does not put before the Court, and did not put before the Tribunal, any material which went to supporting a case that the rescheduling of her hearing would produce a different result or would lead to further information being provided by her.
There was no unreasonableness and no jurisdictional error in the decision of the Tribunal and the Applicant's application for review is without merit.
The application will be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 15 August 2018
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