DDW18 v Minister for Home Affairs

[2018] FCCA 2203

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDW18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2203

Catchwords:
MIGRATION – Reinstatement – application to reinstate – where Registrar dismissed the application at the first court date for non-attendance – where the applicant did not attend the first court date – reinstatement refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth) r.13.03C(1)(c)

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

Migration Regulations 1994 (Cth) reg.4.35D

Cases cited:

Minister for Immigration v SZVFW [2018] HCA 30

Applicant: DDW18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1697 of 2018

Judgment of: Judge Baird

Hearing date: 10 August 2018

Date of Last Submission: 10 August 2018

Delivered at: Sydney

Delivered on: 10 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr A Keevers of Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1697 of 2018

DDW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)

1. This is an application by the Applicant, a citizen of Taiwan, to reinstate a proceeding that was dismissed by a Registrar of this Court on 9 July 2018 because the Applicant failed to appear on the first Court date. The Registrar dismissed the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The originating application was filed on 18 June 2018 and was listed in the usual way before the Registrar for directions on 9 July 2018.

2. On 16 July 2018, the Applicant filed an application in a case with a supporting affidavit dated 13 July 2018 seeking that the proceeding be reinstated. It does not appear that the Applicant informed the First Respondent (the Minister Home Affairs) of that application, however the Minister has obtained notice of the application, appears today, and opposes the application.

3. The Minister says, in sum there is no jurisdictional error by the Administrative Appeals Tribunal in its decision, and that the explanation for the non-appearance before the Registrar in this Court is unsatisfactory, and inadequate to explain the non-appearance.  

Factual background

1. The Applicant was born in 1993.  She has applied for a Protection (class XA) (subclass 866) Visa.  The grounds on which she applied for that Visa are not before me. 

2. On 6 July 2017, the Delegate of the Minister refused to grant the Applicant the Visa.  The decision of the Delegate is not before me.

3. On 28 July 2017 the Applicant applied for review to the Tribunal.  The application to the Tribunal included the contact details of the Applicant, and gave details of an authorised recipient, Ms Zuo, and provided  PO Box and email addresses of the authorised recipient.  That email address, which began with the alphanumeric “good96” was listed as both the Applicant’s email address, and the authorised recipient’s email address.

4. On 20 April 2018, the Tribunal sent a letter by email to the Applicant’s authorised recipient and to the Applicant (the Invitation), inviting the Applicant to attend a hearing on 9 May 2018 at 12pm. The Invitation was sent more than 14 days prior to the hearing, and satisfied that requirement under reg.4.35D of the Migration Regulations 1994 (Cth). The letter also provided the details of the place. The Invitation contained a notice of the consequences of not attending the hearing in compliance with ss.425 and 425A of the Migration Act 1968 (Cth).  The Tribunal’s file does not indicate that any response was received. 

5. On 9 May 2018, the Tribunal affirmed the Delegate’s decision and dismissed the application under s.426A(1A)(b) of the Act. It did so because the Applicant did not appear before it to give evidence and present arguments at the time and date and place of the scheduled hearing. The Tribunal’s decision of 9 May 2018 first records that the Applicant was invited under s.425 of the Act to appear before the Tribunal on 9 May 2018, and that the invitation set out the consequence of non-attendance under s.426A(1A) of the Act.

6. The Tribunal decision record notes that the Applicant did not provide a personal mobile telephone number on her application for review. Accordingly, no SMS message could be sent to her mobile phone to remind her of the hearing. The Tribunal decision further records that the Applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal was satisfied that the Applicant was properly invited to a hearing in accordance with s.441A(5) of the Act.

7. In its decision made on 9 May 2018, The Tribunal stated that it had not received a satisfactory reason for non-appearance.  Indeed, no reason for the non-appearance was given. 

8. I am satisfied that the Tribunal’s decision was made in compliance with the preconditions in s.426A(1) of the Act. The Tribunal then dismissed the application without further consideration pursuant to s.426A(1A)(b) of the Act.

9. The Tribunal’s decision satisfied the requirements of s.426B of the Act.  The Applicant was notified of the decision by email on 9 May 2018, sent to the email address she nominated on her application form.  

10. The Tribunal advised the Applicant as follows:

    You may apply to us, in writing, for reinstatement of the application by 23 May 2018. 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.

11. Also attached to the email was a brochure headed “Information about Dismissal of Applications/MR Division”.  That brochure set out further details about the consequences of the dismissal of an application, along with what would happen if the Tribunal reinstated the application and what would happen if the Tribunal confirmed the dismissal. 

12. Thus the Tribunal’s correspondence advised that the reinstatement of the application should be sought within 14 days of receiving the dismissal decision, and that a failure to apply for reinstatement within the 14 days period would result in confirmation of the dismissal decision.  The Tribunal did not receive a reinstatement application.  Indeed, it appears that it received no communication from or on behalf of the Applicant at all. 

13. Having not received any indication from the Applicant that she was seeking reinstatement, on 24 May 2018 the Tribunal dismissed the application pursuant to s.426A(1E) of the Act.

14. On 24 May 2018, the Tribunal provided to the Applicant a statement of its decision and reasons confirming the decision to dismiss the application. It confirmed the decision to dismiss the application by written statement under s.430 of the Act, and did so in compliance with its obligations under s.426A(1E). The Tribunal provided a copy of the decision to the Applicant’s nominated email address on the same day.

15. On 18 June 2018, the Applicant applied to this Court seeking judicial review of the Tribunal’s decision made 24 May 2018.  The Applicant has not sought review of the dismissal decision made 9 May 2018.  The consequence of not doing so is that if I were to be persuaded to reinstate the application, the Applicant would be out of time to seek review of the decision made 9 May 2018.  An extension of time would need to be sought in order to regularise the application to raise any argument that there had been jurisdictional error in the Tribunal’s decision made on 9 May 2018. 

16. By reason of operation of s.426A(1) of the Act, there can be no jurisdictional error where the Tribunal is compelled by s.426A(1E) to confirm the decision, unless there is some underlying error in the original decision.

17. Taking into consideration the contents of the Tribunal’s Invitation to attend the hearing, and the matters set out in the decision made 9 May 2018, I am not satisfied that there is any jurisdictional error in the Tribunal exercising its task in either the 9 May 2018 dismissal decision, or 24 May 2018 confirmation decision. 

Proceeding in this Court

1. The application to this Court was lodged electronically on 18 June 2018.  The matter was allocated a first return date of 9 July 2018 at 10.15am before a Registrar of the Court. 

2. The address for service and email provided in the application in this Court are different to those nominated by the Applicant in her application to the Tribunal.  The application in this Court states that the Applicant files the application on her own account.  There is no solicitor on record.  Before me today the Applicant appeared unrepresented, with the benefit of a mandarin interpreter.  The Applicant confirmed that the address nominated on the application was her email address.

3. The Minister’s solicitor’s filed a notice of address for service on 3 July 2018.  That notice was provided to the Applicant at her address for service specified in the application, by email under cover of a letter dated 4 July 2018.  The letter referred to the scheduled directions hearing with the following statement:

   Please note that if you do not attend the scheduled directions hearing in your matter we will seek orders from the Court to have your application dismissed and for you to pay the Minister’s legal costs.

4. I note that the address for service contains a table in the upper right corner which identifies the “Court date 9 July 2018” and the “Court time 10.15am.’

5. On 4 July 2018, in a separate email, the Minister’s solicitor emailed to the Applicant a copy of the Minster’s Response filed on 4 July 2018.  A copy of the Response was also posted to the Applicant to her nominated address for service.  Both the cover email and letter stated the following with the date, time and place in bold:

   This matter is listed for directions hearing before the NSW Registrar on 9 July 2018 at 10:15am at the Federal Circuit Court of Australia Law Courts Building, Queens Square, Sydney. You are required to attend Court on this occasion.

   If you do not attend on this occasion, the Respondent will seek orders from the Court that your matter be dismissed and that you pay the Minister’s legal costs of the proceedings.

6. The email added:

   If you have any questions or queries please do not hesitate to contact us.

Reinstatement application

1. On page 2 of the application in a case, the Applicant seeks the following orders:

   1.     I did not receive any notification of rescheduled court time.

   2.     I have prepared most documents for Federal Circuit Court.

   3.     I beg to one more chance, because I fear to go back to Taiwan.

   Although the Applicant does not expressly seek an order that the matter be reinstated, the Court infers from paragraph 3 of the orders that she does seek that course. 

2. In her affidavit sworn 13 July 2018, the Applicant sets out the following 2 paragraphs:

   1.     I fear to go back to Taiwan.

   2.     I did not receive any notification of rescheduled court time.

3. The Applicant sets out the following 2 grounds in the originating application:

   1.I did not attend the hearing, since many things happened to my family. When I called my mother in Taiwan, she told me that she got ill again. The body condition got worse and worse day by day. My father fainted because of taking care of my mom day and night. In face of such shock news, I did not know what to do. During that time, I was living death and could not focus on anything. Later, I did not attend the hearing and locked myself in the room, even thought of suicide. I did not imagine that AAT dismissed my application for review. I think AAT should completely consider everyone's practical situation in a human friendly manner, everyone has the possibility of being in trouble, and I am no exception.

   2.Tribunal should interview me to find facts on all aspects of my claims. But AAT failed not check the situation. So, it breached the provisions in the law. I should have right to comment on any adverse view. I was denied such rights. I was not given opportunity to explain all aspects of my case. So, the tribunal's decision breached my right to natural justice.

4. The affidavit in support of the application stated 3 matters as follows:

   1.I was born in TAIWAN, on the day of [date omitted in these reasons] 1993.

   2.     I lodged the application.

   3.     I fear to return to TAIWAN.

5. I note that the cover page of the originating application filed 18 June 2018, which is headed “NOTICE OF FILING AND HEARING”, under the heading “Filing and Hearing Details” sets out that the first return date is listed on 9 July 2018.  There is no indication that the hearing date was rescheduled at any time, and indeed, that the Registrar conducted a directions hearing on 9 July 2018 shows that there was no rescheduling.

6. I am satisfied that the Applicant was given notice of the Court’s hearing on 9 July 2018.  The Applicant was informed at least twice by the Minister’s solicitors’ communications by mail, and by email. 

Proceeding before the Court

1. As I have said, before me today, the Applicant appeared unrepresented but with the benefit of a Mandarin speaking interpreter. 

2. I explained to her the cost consequences of proceeding, and she said that she wished to continue her application as she has a huge financial obligation in Taiwan, and to the effect she needs to stay in Australia.  Later, in giving her explanation as to reinstatement and as to her matter more generally, the Applicant stated that she really needs to stay in Australia for financial reasons to the following effect:

   I really need to stay in Australia for financial purpose.  I don’t know if I can stay here permanently but would like to stay here as long as possible because I don’t earn that much when I’m in Taiwan. I earn about 22,000 a month Taiwanese currency which is about 400 – 500 Australian dollars each month. But my family really needs money so I’ve been sending them money from Australia whatever I’ve earned here and I need to stay here for this reason.  Also in Taiwan the people I owe money to they always find me in my company and in my home. That is why I could not find permanent jobs at any company or any better jobs that could get me a better income. This has been very difficult for me.

3. I have no other information as to her reasons for applying for the visa, and, in any event, it is the Tribunal’s decision from which judicial review in this Court is sought.

4. In relation to her explanation for non-attendance before the Registrar of the Court, the Applicant provided the Court with a medical certificate dated 9 July 2018.  The certificate contains a statement on one line which appears to state that she is suffering from “dysmenorrhea/heavy”, and that she is “unfit to appointment” from 9-13 July 2018.  The medical certificate is difficult to decipher, and is exceedingly brief.

5. The Applicant explained that she suffers from huge period pain every month, and she was worried that she might suffer it for this month, so she has been taking medication these last few days.  Her other explanations for non-attendance appear to be along on the lines that she did not realise, her solicitor did not put it down for her, and that she had a person helping her, Ms Zuo.  In reply to the Minister’s oral submissions the Applicant submitted that she did not check her emails, and Ms Zuo has her email password, and maybe she did not check the emails either.  In reply, the Applicant also said, from the Bar table, that she had moved to a different address, and she used to live in Auburn.  I have no evidence of any of these matters other than the Applicant’s assertions from the Bar table.

6. The medical certificate is unsatisfactory in that it does not address expressly whether, and if so, why, her heavy periods would prevent her from travelling to the Court and participating in the directions hearing.  There is also no explanation as to why she did not communicate with the Minister’s solicitors if, as her medical certificates states, she was suffering from heavy period pain.  Whilst I have sympathy for the Applicant given her explanation expanding on the matters set out in the medical certificate, I do not accept that her condition would have prevented her from communicating with the Minister’s solicitors or the Court and seeking to adjourn or to vary the Court date.

7. The Applicant has not engaged with the Tribunal’s processes and procedures, nor in this Court on any of the first Court date or with the Minister’s solicitor’s correspondence.  She has, however, turned up today.  Even if I were satisfied as to the explanation for the delay – and I confess I have considerable reservations about the adequacy of her explanation – the Court must also consider whether the Applicant has a reasonably arguable case in the substantive application.

8. I have concluded that the Applicant does not have an arguable case in the substantive application. As I have set out in my discussion of the chronology of events, I am satisfied that the Tribunal acted properly. It complied with the relevant provisions of the Act and Regulations concerning notification, invitation to hearing, and provision of notice under ss.425 and 425A of the Act.

9. I am satisfied that the operation of s.426A was enlivened by the invitation of the Tribunal dated 20 April 2018, and the non-appearance of the Applicant on 9 May 2018, that the Tribunal’s decision on 9 May 2018 does not disclose jurisdictional error, and that the Tribunal’s final dismissal decision on 24 May 2018 is properly made, and is made in accordance with section 426A(1E), and that the decision itself complies with the requirements of s.430 of the Act.

10. I am satisfied that the Applicant was given proper notice of the directions hearing on 9 July 2018.  The Minister’s solicitor, Mr Keevers, has drawn my attention to the decision of the High Court in Minister for Immigration v SZVFW [2018] HCA 30 (8 August 2018), in which s.426A(1) was considered, and the nature of discretion in circumstances analogous to the present, and that at [13] the Court says:

    In the present case, the Tribunal acted according to substantial justice and merits and properly having regard to section 426A and 426B. The Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.  In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case.  Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is not to be exercised in a way which would be contrary to the others.  Consistently with what has earlier been discussed, it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case.

11. For completion, I should also note that the communications by the Tribunal were properly done in accordance with the methods specified in s.441A(5)(b) and (d), and that pursuant to s.441C(5), the authorised recipient was taken to have received the documents on the end of the day in which they were sent. I also note the provisions of s.441G(1) and (2) which have the consequence that where the Applicant has an authorised recipient, communications to that authorised recipient are communications to the Applicant.

12. The application should be dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date:  28 August 2018