DAT22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 233
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DAT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 233
File number: PEG 177 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 24 March 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in its “findings” about the applicant’s protection claims – whether the applicant was properly invited to attend the Tribunal hearing – whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance – whether any error arises in relation to the Tribunal’s Confirmation Decision – whether the Tribunal exceeded its jurisdiction by inviting the applicant to attend a hearing – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 363A, 424, 424C, 425, 425A, 426A, 441A, 441C, 476 and Parts 5 & 7
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZQLJ v Minister for Immigration & Citizenship [2011] FMCA 932
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 21 March 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms T Sikka Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 177 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAT22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
24 MARCH 2023
THE COURT ORDERS THAT:
1.The application (amended on 21 March 2023) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 26 & 51). She first arrived in Australia in March 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 59).
On 17 May 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 13-50). With that application, the applicant provided a copy of her Malaysian passport (CB 51).
On 21 August 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 59-66). Based on the country information before it, the Tribunal considered that the “economic climate in Malaysia affect[ed] everyone” and that the “economic harm the applicant may suffer on [her] return [did] not amount to significant harm” (CB 61). On that basis, the delegate was not satisfied that the applicant met ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”)
On 13 September 2017, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 67-68). In that review application, the applicant provided a postal address and an email address under the “[c]orrespondence details” section of the application form (CB 68).
On 24 July 2021, the Tribunal wrote to the applicant (via email) and requested that she provide updated contact details. That correspondence provided (CB 72):
Dear [applicant],
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
You have not provided your mobile phone number with your application for review.
The Tribunal may need to send you SMS reminders during the review process.
Please provide your mobile phone number now.
If you have any questions or are experiencing problems opening the document/s attached to this email message, please contact us immediately at [email protected], or call 1800 228 333.
Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services:
The applicant did not reply to that correspondence.
On 11 May 2022, the Tribunal invited the applicant (via email) to provide information pursuant to s 424 of the Act (CB 75-83). Relevantly, that letter stated (CB 76):
The information should be received by 25 May 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 25 May 2022, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us by 25 May 2022 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
No response was received by or on behalf of the applicant.
On 8 July 2022, the Tribunal invited the applicant (via email) to attend a hearing before it on 10 August 2022 at 9.30am (WA time) (CB 84-96).
The applicant did not attend that hearing (CB 97-100)
On 11 August 2022, the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Act (the “Non-Appearance Decision”) (CB 105-106).
Later that day (also on 11 August 2022), the applicant was notified by the Tribunal of
the Non-Appearance Decision and of her right to apply for reinstatement (CB 103-104). That letter (which was sent to the applicant via email) stated (CB 103):
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 25 August 2022. 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 applicant did not seek reinstatement.
On 1 September 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 1-7). The applicant also filed an affidavit in support of her application which repeated the grounds of review set out in the judicial review application and annexed a copy of the Non-Appearance Decision (CB 8-12).
On 8 September 2022, the Tribunal confirmed the Non-Appearance Decision (the “Confirmation Decision”) (CB 111-112). By virtue of s 426A(1F) of the Act, the delegate’s decision was taken to be affirmed. The applicant was notified of that Confirmation Decision via email on 9 September 2022 (CB 109-110).
The applicant’s judicial review application (filed in this Court on 1 September 2022) is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
THE TRIBUNAL’S DECISIONS
In determining whether the Tribunal fell into jurisdictional error, it is helpful to first detail the Tribunal’s decisions.
The Non-Appearance Decision
In full, the Tribunal’s reasons in relation to the Non-Appearance Decision dated 11 August 2022 provide (CB 105-106):
1.On 11 May 2022 the Tribunal wrote to the review applicant pursuant to s 424(2) of the Migration Act 1958 (Cth) (the Act) inviting them to provide information in relation to her application. The information sought related to the applicant’s current circumstances and claims for protection. The invitation stated that if the Tribunal did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. The invitation also highlighted that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. No response to this invitation was received.
2.Notwithstanding the applicant’s failure to respond to the invitation, the Tribunal exercised its discretion to invite the applicant to a hearing pursuant to s 425 of the Act.
3.Accordingly, the applicant was invited under s 425 of the Act to appear before the Tribunal on 10 August 2022 at 9:30 am (WA time). 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.
4.The review applicant did not respond to the hearing invitation and has not engaged with the Tribunal about the review process since their application for review was lodged on 13 September 2017.
5.No request for an adjournment was received. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place.
6.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) of the Act and the invitation has not been returned to sender.
7.The Tribunal notes the applicant did not provide any telephone contact details with their application for review. The Tribunal wrote to the applicant on 24 July 2021 noting that no number had been provided and requesting that they provide a telephone contact number for their application. The Tribunal did not receive any response to this request.
8.There is no record of the review applicant contacting the Tribunal by any other means at the scheduled time to explain why they had not appeared before the Tribunal. No satisfactory reason for the non-appearance has been given.
9.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision
In full, the Tribunal’s reasons in relation to the Confirmation Decision dated 8 September 2022 provide (CB 111-112):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 August 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
2.On 11 August 2022 the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s 426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 1 September 2022 contains two “grounds of review” as follows (without alteration) (CB 4):
1.I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant harm from Malaysia of riots, racism, terrorism, serious crime and lost confidence in the leader of the government. If I return to Malaysia, Malaysia authorities will not protect me. The threat is real and significant, which would cause a fatal influence on me. Therefore, I would like to apply for protection in Australia.
2.I seek for my claims to be given a second chance for me to provide more details to strighter my claims but not just to concern.
As outlined above, the applicant provided an affidavit with that application (sworn by her on 29 August 2022 and filed in this Court on 1 September 2022). That affidavit repeated the “grounds of review” outlined at [20] above.
On 10 January 2023, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions.
Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared before this Court without legal representation. She was assisted at the hearing by an interpreter in the Mandarin language. The Court confirmed with her that she had received a copy of the Court Book and the Minister’s written submissions. The applicant confirmed that she had received both but advised that she had not bought them with her to Court.
The Minister’s representative, Ms Sikka, advised the Court that the Minister’s submissions had been filed one day late and had been served on the applicant two days late. While not ideal, the Court was satisfied that the applicant had received and reviewed the written submissions and had sufficient time to assess their content. Further, at the Court’s request, Ms Sikka took the applicant through the written submissions at the hearing in considerable detail. In the circumstances, the Court is satisfied that the applicant was not prejudiced by the two day delay. An order was made by the Court at the hearing to grant the Minister leave to rely on the written submissions as filed.
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicant on 1 September 2022, a Court Book numbering 114 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 8 March 2023 and an affidavit of service of Ms Tanvi Sikka affirmed and filed on 14 March 2023.
Noting that the applicant was unrepresented, the Court gave her the opportunity to elaborate on her grounds of review and, further, explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, it was explained to her that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. It was emphasised that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that for migration decisions of this sort, they most commonly include the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant initially explained that she had “assigned this task to an agent who was referred to her by a friend”. She advised that she understood that the proceeding before this Court relates to the Tribunal’s decisions but “did not have anything further to say” in relation to those decisions.
Unfortunately, the applicant’s oral submissions do not raise any allegation of jurisdictional error or any issue of the sort that this Court can address. This leaves the Court to assess the grounds of review as articulated but without much clarity or assistance from the applicant. Noting, however, that the applicant appeared before this Court without legal assistance, the Court will, in its duty to her as a self-represented litigant, read the applicant’s grounds of review as broadly as possible and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decisions: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
CONSIDERATION
Grounds of review
The applicant’s grounds of review provide (without alteration) (CB 4):
1.I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant harm from Malaysia of riots, racism, terrorism, serious crime and lost confidence in the leader of the government. If I return to Malaysia, Malaysia authorities will not protect me. The threat is real and significant, which would cause a fatal influence on me. Therefore, I would like to apply for protection in Australia.
2.I seek for my claims to be given a second chance for me to provide more details to strighter my claims but not just to concern.
As outlined above, the applicant failed to appear at the Tribunal hearing (scheduled on 10 August 2023) in this matter. As a result, the Tribunal dismissed the application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
In the circumstances, any error in relation to findings made about the applicant’s protection claims could only reference the decision made by the delegate. The Court notes that it does not have jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act.
The applicant’s grounds of review do not identify any jurisdictional error on the part of the Tribunal.
Otherwise
In its duty to assist self-represented litigants, the Court has considered for itself whether any arguable case of error arises in the Tribunal’s decision (as per the decision in MZAIB).
In this regard, the Court will also consider the following issues:
(a)whether the applicant was properly invited to attend the Tribunal hearing;
(b)whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance;
(c)whether any error arises in relation to the Tribunal’s Confirmation Decision; and
(d)whether the Tribunal exceeded its jurisdiction by inviting the applicant to attend a hearing.
Whether the applicant was properly invited to attend the Tribunal hearing
The Court will first consider whether the applicant was properly invited to appear before the Tribunal.
In this regard, the Court notes that the Tribunal was required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act, which provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
On 8 July 2022, the Tribunal invited the applicant (via email) to attend a hearing before it, scheduled to take place on 10 August 2022 (CB 84-96).
Section 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provides:
425A 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.
Here, the invitation to attend the hearing:
(a)was addressed to the applicant (CB 85);
(b)clearly indicated the date, time and means by which the applicant could attend that hearing (being on 10 August 2022 at 9.30am (WA time) and providing the applicant with the address for the Tribunal’s Perth registry (CB 85): s 425A(1) of the Act;
(c)was sent via email (a method approved by s 441A(5)(b) of the Act) to the applicant’s nominated email address on 8 July 2022 (CB 84): s 425A(2)(a) of the Act;
(d)was given to the applicant 33 days prior to the scheduled hearing, exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (being 14 days after the day the person receives the notice): s 425A(3) of the Act; and
(e)contained a statement describing the effect of s 426A of the Act and what would happen if the applicant did not attend the hearing (CB 87): s 425A(4) of the Act.
For completeness, the Court notes that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter – where the invitation was sent via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case, at the end of the day it was transmitted, being 8 July 2022), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].
The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act. The applicant was properly invited to attend the hearing.
No error arises in this regard.
Whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance
As outlined by this Court in ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744, before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (under s 425 of the Act) to appear before it. Further, ss 425 and 425A of the Act are to be read together: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]. If s 425A of the Act has not been complied with, a valid hearing invitation has not been sent and the Tribunal’s powers under s 426A of the Act will not be enlivened.
For the reasons set out above, the Court is satisfied that the applicant in this matter was properly invited to appear at the Tribunal hearing as required by ss 425 and 425A of the Act.
As the applicant had been invited to attend a hearing, but failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section 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.
The applicant did not appear at the hearing on 10 August 2022. She does not dispute this fact.
In the circumstances, two options were available to the Tribunal. It could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or it could dismiss the applicant’s application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
In this matter, the Tribunal chose the latter option. That is, the Tribunal decided to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The Tribunal’s decision to exercise its powers in this regard is discretionary. As such, that decision must be made “reasonably”.
In the circumstances of this matter, the Court is satisfied that the Tribunal acted reasonably. Relevantly:
(a)the hearing invitation was sent to the applicant by email at her nominated email address and there was no evidence before the Tribunal to suggest that the applicant did not receive that invitation (for example, there was no email delivery failure notice received) (CB 84);
(b)the applicant did not respond to the Tribunal’s request to the applicant (sent via email on 24 July 2021), asking that she provide the Tribunal with a mobile number (CB 72);
(c)the applicant did not respond to the Tribunal’s invitation to provide information (sent to her on 11 May 2022 via email) (CB 75-83);
(d)the Tribunal exercised its discretionary powers to invite the applicant to attend a hearing before it, notwithstanding the fact that she had failed to respond to the invitation to provide information (this issue will be discussed further below);
(e)after lodging her review application with the Tribunal on 13 September 2017 (CB 67-68), the applicant did not engage or make contact with the Tribunal at any time;
(f)no further material had been provided to the Tribunal by the applicant in support of her review application;
(g)the applicant did not appear at the Tribunal hearing at the scheduled time of 9.30am (WA time) on 10 August 2022 (CB 97-100); and
(h)the Tribunal waited nearly 24 hours (until 8.39am on 11 August 2022) before determining that the applicant was not going to appear at that hearing (or make any contact with the Tribunal to explain why she had not attended) and before the Tribunal member ultimately made the Non-Appearance Decision (CB 105-106).
In the circumstances of this matter, and based on the information set out above, the Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicant’s application pursuant to s 426A(1A)(b) of the Act.
No jurisdictional error arises in this regard.
Whether any error arises in relation to the Tribunal’s Confirmation Decision
The Court notes that the applicant in this matter was notified of the Non-Appearance Decision via email on 11 August 2022 (CB 102-104).
In relation to any procedural fairness concerns that the applicant might have regarding the Confirmation Decision, it is noted that when the applicant was advised that her application had been dismissed, she was also advised that she could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (CB 103). This complied with s 426B(6) of the Act.
The applicant did not apply for reinstatement.
Section 426A(1E) of the Act provides:
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.
In circumstances where no application for reinstatement was made, the Tribunal was therefore required to confirm the decision to dismiss the applicant’s application and did so. The Tribunal provided the applicant with a written statement to that effect, in the form of the Confirmation Decision, made on 8 September 2022 (and sent via email to the applicant on 9 September 2022) (CB 111-112).
No jurisdictional error arises in relation to the Tribunal’s procedural fairness obligations in this regard.
Whether the Tribunal exceeded its jurisdiction by inviting the applicant to attend a hearing
The Tribunal wrote to the applicant on 11 May 2022 inviting her to provide information pursuant to s 424(2) of the Act (CB 75-83).
The applicant did not respond to that invitation.
As set out recently by this Court in BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176, if an applicant is invited under s 424(2) of the Act to give information but fails to do so, he or she may lose the right to attend a Tribunal hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.
As a consequence of the interaction between ss 424, 424C and 425 of the Act, if an applicant fails to respond to an invitation under s 424 of the Act, the consequence will be to attract the cascading operation of ss 424C((1) and 425(2)(c). Ultimately, the result is that the applicant would no longer be entitled to appear before the Tribunal to present his or her case (see, generally, M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247 at [25]-[31]).
However, the Court notes that there is a critical difference in the processes between Part 7 and Part 5 reviews. In a Part 5 process, if an applicant fails to comply with a request for information under s 359 of the Act (which is equivalent to s 424 of the Act in Part 7), by operation of s 363A of the Act, the Tribunal will have no discretion (nor any power) to conduct a hearing. There is no such consequence in relation to a review under Part 7 of the Act.
The Tribunal thus retains a discretion under Part 7 of the Act to schedule a hearing if it considers it necessary (though the applicant will no longer be “entitled” to attend such a hearing).
The Court also notes the comments of Driver FM (as he was then) in SZQLJ v Minister for Immigration & Citizenship [2011] FMCA 932 as follows (emphasis added):
35.…the Tribunal [acting under Part 7], unlike the Tribunal [acting under Part 5], is not required to deny an applicant a hearing opportunity to which he or she has been invited because of a non‑provision of requested information…
In this matter, the Tribunal retained its discretionary power to invite the applicant to attend a hearing and did so and the Tribunal was not required to deny the applicant the opportunity to appear at such a hearing.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 1 September 2022 (and amended on 21 March 2023) has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 March 2023
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