Det19 v Minister for Immigration
[2020] FCCA 556
•10 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DET19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 556 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application on account of the applicant’s non attendance. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 |
| Applicant: | DET19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2166 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2020 |
REPRESENTATION
| The Applicant attended by telephone |
| Solicitors for the Respondents: | Mr X Goffinet of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2166 of 2019
| DET19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Administrative Appeals Tribunal) made on 24 July 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 25 February 2020.
The applicant, a citizen of China, arrived in Australia on 25 April 2015 as the holder of a visitor (Class FA) (subclass 600) visa,[1] and applied for a protection visa on 23 July 2015.[2] The applicant’s claims for protection were set out in a written statement provided with his visa application,[3] and may be summarised as follows.
[1] Court Book (CB) 60
[2] CB 1
[3] CB 37-38
The applicant began taking part in the activities of an underground “shouting” church in 2003, accompanied by his cousin. The church was led by “Priest He”. The applicant and his cousin were business partners and used their store as a venue to train new members of the church and to organise bible study. From May 2003 to November 2004, the applicant attended weekly Bible studies and was training with Priest He. The applicant also assisted in distributing religious materials. In early 2004 the applicant set up his own bible group. In May 2014, the police broke in and accused the group of conducting illegal meetings. The applicant was detained, interrogated, and “brutalised” from 28 May to 27 June 2014. In September 2014, Priest He told the applicant he had experienced difficulties with the authorities, and suggested that the applicant leave Fujian. Priest He was arrested at the end of September 2014, and the applicant travelled to Australia in April 2015. The applicant immediately began attending a local church upon his arrival. The applicant feared persecution by the government in China for being a Christian.[4]
[4] CB 37-38
The applicant did not attend his scheduled interview before the delegate.[5] On 21 July 2016, the delegate refused the grant of the protection visa.[6]
[5] CB 65
[6] CB 60-69
On 8 August 2016, the applicant applied to the Tribunal for review.[7] On 8 January 2019 the Tribunal sent a letter to the applicant advising him that his file was being prepared for allocation to a Tribunal member and that this may result in a hearing being scheduled.[8] On 7 June 2019 the Tribunal sent the applicant an invitation to attend a hearing scheduled for 22 July 2019.[9] This invitation was sent by email[10] to the address nominated on his application for review.[11] The Tribunal sent two SMS reminders to the applicant, but delivery of those messages failed.[12]
[7] CB 70
[8] CB 79
[9] CB 81-82
[10] CB 80
[11] CB 71
[12] CB 104
The applicant did not attend the hearing[13] and the Tribunal proceeded to make a decision on the review pursuant to s.426A of the Migration Act 1958 (Cth) (Migration Act) without taking any further action to enable the applicant to appear before it.
[13] CB 87-88
Tribunal decision
The Tribunal summarised the procedural history of the review application, and recorded that there was no evidence that its email to the applicant attaching the invitation was not delivered successfully.[14] The Tribunal further recorded that it had checked Tribunal and Departmental records for any further contact details provided since the application was lodged, but that those checks did not yield new information.[15] The Tribunal concluded that it was satisfied that the applicant was properly invited to a hearing in accordance with s.441A(5) of the Migration Act, and elected to make a decision pursuant to s.426A.[16]
[14] CB 93, [1]-[9]
[15] CB 93, [9]
[16] CB 93, [9]-[10]
The Tribunal stated that it had a “brief statement before it” and set out the applicant’s claims contained within the document appearing at CB 37-38 (statement).[17] On the basis of the “limited” material and the failure of the applicant to attend the hearing where he could provide further evidence, it did not accept the applicant’s claims.[18] The Tribunal found that the applicant did not raise any further claims to fear harm and no other claims were apparent on the material before it.[19]
[17] CB 94 [15]-[22]
[18] CB 94-95 [24]-[25]
[19] CB 95 [26]
Taking into account the findings set out above, the Tribunal was not satisfied that the applicant was a person in respect of whom protection obligations were owed pursuant to s.36(2)(a) or s.36(2)(aa) of the Migration Act.[20] The Tribunal affirmed the decision not to grant the applicant the visa.[21]
[20] CB 95 [27]-[32]
[21] CB 96 [35]
The present proceedings
These proceedings began with a show cause application filed on 22 August 2019. That application gives an address for service of a post office box in Haymarket and a Yahoo email address. There are two grounds in the application, perhaps three:
1. AAT committed jurisdictional error in that it failed to take into account a relevant consideration namely the evidence of my being harmed in [China] and fearing to return.
2. Particulars:
a) The My Personal statement in support of my application for a protection visa stated.
b) In the interview with the Respondent I stated that I feared to go back to China because
i) I was wanted by the police
ii) I wanted to stand by the side of justice
c) At AAT, they have procedure unfairness.
i) It was my agent failed to inform me of the hearing time
ii) AAT did not send message to my phone, because I have never received one
(errors in original)
The application is supported by a short affidavit by the applicant filed with it, to which is attached the Tribunal decision.
The applicant failed to appear in person when this matter was called this afternoon. However, the Court was successful in contacting the applicant by telephone. The applicant said that he could not discuss anything because he needed to talk to his lawyer. There nevertheless was some discussion between him and me. The following appears from that discussion. The applicant has been assisted throughout the visa process by a person he describes as a friend. The same person has assisted the applicant before the Minister’s Department, before the Tribunal and before the Court.
It is noteworthy that the applicant did not attend at the interview before the delegate to which he was invited. Neither did he attend the hearing before the Tribunal to which he was invited. The applicant conceded attending the first Court date directions in this matter before a registrar on 12 September 2019. Order 10 of those orders made by the registrar fixed this matter for hearing today at 3.30pm. The applicant nevertheless asserts that he needed his friend’s confirmation of the hearing arrangements before he could attend.
Exhibit R1 is a letter dated 25 February 2020 from the Minister’s solicitors to the applicant. It was sent by email to the applicant’s nominated email address and by express post to the post office address in Haymarket. The applicant told me that both of those addresses belonged to his friend, not him. He asserts that his friend did not tell him about the hearing and that is why he failed to attend. I put to the applicant that there was a pattern of non-attendance involved in this case. He offered an apology and said to the effect that he did not want to cause a problem.
The appropriate course in the circumstances before me is to dismiss the application on account of the applicant’s non-attendance. I take into account the history of the proceedings and the grounds of review advanced in the application. Those grounds would be doomed to fail for the reasons advanced by the Minister.
The assertion that the Tribunal failed to consider the applicant’s evidence and his fear of returning to China is contradicted by the Tribunal’s decision record. The Tribunal’s decision record at [22] plainly acknowledges the applicant’s claim to fear harm from Chinese authorities.[22] The Tribunal’s decision record also shows an engagement with the very limited evidence before it.[23] The Tribunal was not required to accept the applicant’s claims uncritically,[24] and it remained the responsibility of the applicant to specify all the particulars of his claims and to provide sufficient evidence to establish them.[25]
[22] CB 94
[23] For example, at [14], the Tribunal refers to the biodata page of applicant’s passport (CB 94)
[24] Randhawa v Minister for Immigration (1994) 52 FCR 437, 451
[25] Migration Act, s 5AAA
Particular (2)(a) consists of an incomplete sentence and is incomprehensible. The applicant’s case is not assisted by the other particulars in paragraph (2), as they are premised on factual assertions that are either unmet by evidence or directly contradicted by it:
a)particular (2)(b) refers to an interview with “the Respondent” which simply did not occur. The applicant did not attend his interview with a delegate of the Minister[26] and did not attend the hearing with the Tribunal;[27]
b)particular (2)(c)(i) refers to an agent, when the applicant did not nominate an authorised recipient for his documents, and the email enclosing the hearing invitation was sent to the applicant’s nominated email address, as provided in his application to the Tribunal.[28] This was the same email address the applicant provided to the Minister’s Department with his protection visa application.[29] The applicant’s assertion in particular 2(c)(i) is not supported by the evidence;
c)particular 2(c)(ii) is rebutted by the Tribunal’s case notes, which show that the Tribunal attempted to send SMS reminders to the phone number provided by the applicant.[30] The applicant was on notice that a failure to update his details may result in his not receiving his hearing invitation, and was informed that this may cause his case to be decided without further notice.[31]
[26] CB 65
[27] CB 87-88
[28] CB 71, 80
[29] CB 15
[30] CB 71, 104
[31] CB 73
In any event, the Tribunal was only required to send the hearing invitation by email to the address nominated by the applicant.[32] That invitation was valid because it:
a)informed the applicant of the time, date and location of the hearing;[33]
b)was sent to the applicant by email to the last email address provided to the Tribunal by the applicant in connection with the review;[34]
c)afforded the applicant a period in excess of the prescribed period of notice of the hearing;[35] and
d)advised the applicant of the effect of s.426A of the Migration Act (namely, the consequences of the failure of the applicant to appear before the Tribunal.[36]
[32] Migration Act, ss.425A(2)(a), 441A(5)(d)
[33] Migration Act, s.425A(1) (CB 81)
[34] Migration Act, ss.441A(5), 425A(2) (CB 80)
[35] Migration Act, s.425A(3) and regulation 4.35D of the Migration Regulations 1994 (Cth) (CB 81)
[36] Migration Act, s.425A(4) (CB 83-86)
The Tribunal’s discretion under s.426A(1A) of the Migration Act was thus properly enlivened upon the applicant’s failure to attend the hearing.[37] The Tribunal’s decision record discloses an evident and intelligible justification for the exercise of that discretion, namely its attempts to contact the applicant, his history of unexplained non-attendances at scheduled interviews and its failure to find alternative contact details by searching its records.[38] In those circumstances, the Tribunal’s exercise of its discretion cannot be said to be legally unreasonable.[39] The applicant’s ground of review, and the particulars attached to it, do not disclose an arguable case for relief and the application should be dismissed.
[37] CB 87-88
[38] CB 93, [8]-[10]
[39]Minister for Immigration v Li (2013) 249 CLR 332, 367 at [76]
For completeness, the Minister notes that the Tribunal’s decision contains an apparent error in that it appears to conflate the identities of Priest He and the applicant’s cousin. I accept the Minister’s submission that this error cannot amount to jurisdictional error. First, the error was not material to the substance of the applicant’s claims, which the Tribunal otherwise summarised correctly. Secondly, the determinative finding at [27] was premised on the lack of evidence before the Tribunal to substantiate the applicant’s narrative, and does not turn on the identity of the characters within it.[40] As such, the Tribunal’s reasoning would not have been any different had it not made the error of fact, in circumstances where the applicant did not attend the hearing and did not provide any further evidence. As such, it is evident that the error was not material and did not change the outcome.[41] Accordingly, no jurisdictional error arises from it.[42]
[40] CB 95
[41] Minister for Immigration v SZMTA (2019) 264 CLR 421, 433 at [2]-[3]; Hossain v Minister for Immigration (2018) 264 CLR 123, 135 at [30]
[42] Gill v Minister for Immigration (2017) 250 FCR 309, 332 at [65]; City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [44]
I will order that, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
On account of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. I invited submissions from the applicant on that issue, but he declined to make any.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 March 2020
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