DGM16 v Minister for Immigration
[2019] FCCA 1683
•13 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DGM16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1683 |
| Catchwords: MIGRATION – Application for review of decisions of Administrative Appeals Tribunal under ss.426A(1A) and 426A(1E) of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.425, 425A, 426A, 426B, 441A, 441C, 441G |
| Cases cited: SZOBI v Minister for Immigration and Citizenship (No. 2) [2010] FCAFC 151 |
| Applicant: | DGM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3011 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 13 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2019 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application for review of the decisions of the Tribunal of 4 October 2016 and 20 October 2016 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3011 of 2016
| DGM16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
By application filed on 1 November 2016, the Applicant sought judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) of 4 October 2016. The Tribunal dismissed an application for review of a decision to refuse to grant a protection visa under s.426A(1A)(b) of the Migration Act 1958 (Cth) (the Act) in circumstances where the Applicant had not appeared at the Tribunal hearing to which he had been invited. It is also apparent that the Applicant seeks review of the Tribunal decision of 20 October 2016 in which the Tribunal confirmed the decision to dismiss the application because the Applicant had not sought reinstatement of his application (see ss.426A(1C) and 426A(1E) of the Act).
In his review application, the Applicant referred only to the dismissal decision, but he attached to the affidavit accompanying his application copies of both the Tribunal decisions. The solicitor for the Minister conceded that it was appropriate to proceed on the basis that the Applicant was seeking review of both the Tribunal decisions. Both the decisions (and the associated procedures) were addressed in detail in the Minister’s written submissions.
I note first that the copy of the review application in the courtbook did not reproduce the letters “L” and “I”, except where they appeared in bold. However, the Minister filed and relied on an affidavit of Anthony Robert Gardner affirmed on 6 June 2019, which annexes a copy of the pages of the Applicant’s review application with the missing letters. In addition, as evidenced in an annexure to an affidavit of Maria del Carmen Juarez, affirmed on 6 June 2019, the Tribunal’s file included a document which was not in the courtbook, but which has now been provided to the court. It is a one-page Tribunal document headed “case conference”. It recorded the date and matter number of the Applicant’s application (consistent with the matter number recorded on correspondence addressed to the Applicant) and was marked “no show at conference”.
The background to these proceedings is that the Applicant, a citizen of Malaysia, arrived in Australia in 2013 as the holder of a student visa. He applied for protection in August 2014. In a statement in support of his application he explained the basis on which he sought protection, including his Chinese ethnicity and events he claimed had occurred in Malaysia. The delegate refused the application. The Applicant sought review by the Tribunal.
In his online application to the Tribunal the Applicant provided his personal details, including a mobile telephone number. He provided an email address under his own name, which was the same email address that he provided for a named registered migration agent who was his authorised recipient. A Post Office Box address and a mobile telephone number (which differed from that of the Applicant) were also provided for the agent.
On April 8 2015, the Tribunal wrote to the Applicant, by email sent to the migration agent at the email address provided in the review application, acknowledging receipt of the application.
On 19 August 2016, the Tribunal sent an email to the Applicant’s agent (at that same email address) enclosing a letter to the Applicant inviting him to attend a case conference scheduled for 7 September 2016. The time, date and place of the conference were specified. The purpose of the case conference was said to be to establish whether his case was ready to be listed. The types of issues to be discussed at the case conference were set out in the letter. The Applicant did not attend the case conference.
On 12 September 2016, the Tribunal sent an email to the Applicant’s migration agent (at the email address provided in the review application), attaching a letter to the Applicant inviting him to attend a Tribunal hearing on 30 September 2016. Among other things, the letter advised that if the Applicant did not attend the hearing, the Tribunal may dismiss the matter without any further consideration of the application. It also advised that such a dismissed case could be reinstated if the Tribunal member considered it appropriate to do so and the application for reinstatement was made within 14 days of receiving notice of the dismissal. A leaflet about the Tribunal hearing procedure was enclosed, as was a response to hearing invitation form.
As indicated, the Tribunal hearing was scheduled for 30 September 2016. The courtbook contains two Tribunal case notes. The first recorded that an SMS hearing reminder was sent to the Applicant’s mobile phone telephone number on 23 September 2016 at 11.00 am. The mobile telephone number recorded is the number that was provided for the Applicant personally in his review application form. Similarly, a case note of 29 September 2016 recorded that an SMS hearing reminder was sent to the Applicant at the same mobile telephone number on 29 September 2016 at 11.00 am.
The Applicant did not attend the Tribunal hearing. It appears from the material before the Court that he did not otherwise respond to the hearing invitation. In these circumstances, on 4 October 2016 the Tribunal dismissed his review application under s.426A(1A)(b) of the Act. In its reasons it recorded that the Applicant had been invited under s.425 of the Act to appear on 30 September 2016 at 9.30 am but that he did not appear at the scheduled time and place and had not requested an adjournment. The Tribunal stated that as no satisfactory reason for the non-appearance had been given, it had decided to dismiss the application without further consideration of the application or the information before it.
The decision notification was sent to the Applicant by email to his migration agent’s email address on 5 October 2016. Both the letter to the Applicant accompanying the copy of the decision and an attached information form from the Tribunal advised him of the circumstances of the dismissal, of his right to seek reinstatement of the application within 14 days and of the fact that, if he did not do so, then the Tribunal must confirm the decision to dismiss the application. The Applicant did not apply for reinstatement.
On 20 October 2016, the Tribunal confirmed the decision to dismiss the application for review of the decision not to grant the Applicant a protection visa. In its reasons, the Tribunal referred to the dismissal under s.426A(1A)(b) on 4 October 2016, the reason for the dismissal, the notification of the dismissal, and the fact the Applicant was given a copy of the written statement setting out that decision and the reasons for the decision and was advised that he could seek reinstatement within 14 days and that, if he failed to do so, the decision would be confirmed.
The Tribunal found that as the Applicant did not apply for reinstatement of the application within the 14-day period, it must confirm the decision to dismiss the application. The Tribunal confirmed the decision to dismiss the application.
In these circumstances the Applicant seeks review of both Tribunal decisions. It is convenient to consider first the three grounds in the application. He did not file written submissions, but was given an opportunity today to elaborate on those grounds and any other concerns he had about the Tribunal decision or procedures.
Each of the grounds refers to both the Tribunal and the Department of Immigration. Insofar as the Applicant complains about the Department, the court has no jurisdiction to review the delegate’s decision in the circumstances of this case (see s.476 of the Act).
Otherwise, the first ground is that the Tribunal “ignored the material facts in the applicant’s complementary protection”. The Applicant did not elaborate on this ground. Instead he raised an issue about what had occurred when he held an earlier student visa which was not relevant in the present proceedings. He also expressed a concern that he had not received the Tribunal invitation, a matter to which I will return.
This ground, and indeed the other pleaded grounds, appear to misunderstand the manner in which the Tribunal proceeded in this case and the power of the Tribunal under s.426(1A)(b) of the Act to make a decision to dismiss an application without further consideration of the application or information before the Tribunal. As pleaded this ground is not made out. As discussed below, the Tribunal complied with its procedural obligations in the Act and was empowered under s.426A(1A)(b) of the Act to make the dismissal decision without giving further consideration to the visa application or the information before it and also to make the subsequent confirmation decision.
Where the Applicant did not attend the hearing and the application was dismissed under s.426(1A)(b) the Tribunal was not required to assess the Applicant’s application on its merits. Further, as the Applicant did not apply for reinstatement within the specified period, the Tribunal was required to confirm its earlier decision pursuant to s.426A(1E) of the Act.
In these circumstances, as explained further below, the Tribunal did not fall into error by not considering the Applicant’s claims, whether in the context of the complementary protection criterion or otherwise or in failing to consider the “material facts”, as the Applicant put it, which is apparently a reference to the evidence and claims he relied on in support of his protection visa application.
The same may be said in relation to the second ground in the application, which is that the Tribunal “failed to consider the risk of persecution upon return to the applicant’s home country”. It is not necessary for a Tribunal to consider such risk or indeed the claims an applicant makes in that respect in circumstances where it dismisses the application pursuant to s.426A(1A)(b) and confirms the decision under s.426A(1E) of the Act. Nor does the Tribunal make an error of law by “failing to consider the applicant’s claim” as contended for in ground 3 of the application in such circumstances.
The Minister provided detailed submissions in relation to the Tribunal’s compliance with its procedural obligations. These matters were not addressed by the Applicant, except insofar as he contended that he had not received invitations sent to his migration agent.
I am satisfied that the hearing invitation letter of 12 September 2016 which was sent by the Tribunal to the Applicant complied with the requirements of s.425A of the Act. The hearing invitation gave the Applicant notice of the time, date and place at which he was scheduled to appear. Importantly, it was sent to the nominated address for correspondence, being the Applicant’s authorised recipient’s email address. That was done in compliance with s.441A(5) of the Act (and see s.425A(2)(a) of the Act).
It is notable that under s.441G(1) of the Act, if an applicant gives the Tribunal written notice of an address of an authorised recipient authorised by the Applicant to receive documents in connection with the review (as here) the Tribunal must give the authorised recipient, instead of the Applicant, any document that it would otherwise have given to the Applicant. If the Tribunal does give such document to the authorised recipient, it is taken to have given the document to the Applicant (see s.441G(2)).
The hearing invitation was sent by a method specified in s.441A of the Act; that is, by email to the agent’s email address provided on the review application form (see s.441A(5) and s.425A(2)(a)). The invitation gave the Applicant more than 14 days notice of the date of the hearing (see reg.4.21 of the Migration Regulations 1994 (Cth) and s.425A(3)). It enclosed an “Information about Hearings” brochure which, as required under s.425A(4), contained a statement of the effect of s.426A of the Act (which sets out the consequences for an applicant who fails to appear before the Tribunal).
I am satisfied that the hearing invitation complied with the requirements of the Act. As it was given by email, a method specified in s.441A(5), pursuant to s.441C(5) of the Act the Applicant was taken to have received it at the end of the day on which it was transmitted. Under the Act that is so whether or not the Applicant actually received the document (see SZOBI v Minister for Immigration and Citizenship(No. 2) [2010] FCAFC 151).
Accordingly, I accept that, as the Minister submitted, the Tribunal correctly invited the Applicant to a Tribunal hearing for the purposes of s.425 of the Act.
The Tribunal was not under a statutory obligation to take further steps to invite the Applicant to the hearing (see BZAHM v Minister for Immigration and Border Protection [2015] FCA 675). I note, however, that in addition to the invitation sent to the Applicant through his migration agent, as set out above the Tribunal recorded that two separate SMS messages were sent to the Applicant himself prior to the hearing date on the telephone number provided for him personally on his review application form.
As to the procedures relating to the dismissal decision of 4 October 2016, I am satisfied that the Applicant was correctly notified of the dismissal decision. The letter notifying him of that decision and the accompanying documents complied with the requirements in s.426B(1) of the Act (setting out the decision, reasons and the date and time). A copy was provided to the Applicant within 14 days by a method specified in s.441A of the Act by email to the email address provided by the Applicant in connection with the review, being the nominated email address for correspondence with the authorised recipient (see s.426B(5)). The written statement was accompanied by an information brochure which described the effect of ss.426A(1B) to (1F) of the Act (s.426B(6)).
In those circumstances, pursuant to s.441C(5) of the Act, the Applicant was taken to have received the dismissal decision at the end of the day on which it was transmitted.
As indicated, the Applicant did not seek reinstatement within 14 days, notwithstanding that he had a right to do so under s.426A(1B) of the Act. As he did not make such an application for reinstatement, the Tribunal was required under s.426A(1E) of the Act to confirm the decision to dismiss the application by written statement. It did so.
It has not been established that the Tribunal failed to comply with any of the statutory requirements either in relation to the exercise of its power under s.426A(1A)(b) or in relation to the confirmation decision.
In submissions, the solicitor for the Minister also addressed the issue of whether the Tribunal’s approach in these circumstances raised any issues of legal unreasonableness. The Minister accepted that the Tribunal’s powers to dismiss an application under s.426A(1A)(b) of the Act and to reinstate an application under s.426A(1C) are conditioned by legal reasonableness in the sense contemplated in the Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. It was pointed out that the question of whether a Tribunal exercises its discretion reasonably is fact specific (see Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 63 and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408, in particular at [84]).
I accept that, as the Minister submitted, the facts of this matter demonstrate that the Tribunal’s decision to dismiss the review application fell within the range of possible acceptable outcomes defensible in respect of facts and law in the sense discussed in Li at [105]. The Tribunal sent the hearing invitation by email in accordance with the relevant statutory requirements such that the Applicant was taken to be on notice of it. In addition it sent the Applicant (personally) two SMS reminders about the hearing. There had been no prior active engagement by the Applicant with the Tribunal. He had not attended the case conference to which he had been invited in accordance with the procedures in the Act. Other than filing his application, the Applicant had not provided any evidence to the Tribunal in support of his claims or otherwise engaged with the review. The Tribunal did not receive any request for an adjournment or for the hearing to be rescheduled. Furthermore, in this case the dismissal decision was not final in nature, as the Applicant had (as he was informed) an opportunity under the Act to apply to the Tribunal for reinstatement. Despite being properly notified of that opportunity, he did not seek reinstatement.
In these circumstances the Tribunal’s decision to dismiss the application under s.426A(1A)(b) of the Act was reasonably open to it on the material before it. Its reasons provide an evident and intelligible justification for that decision (see Li at [76]). There is nothing to establish legal unreasonableness in the conduct or procedures adopted by the Tribunal in this respect.
As to the confirmation decision, as the Applicant did not make an application for reinstatement within the statutory time, or indeed at all, the Tribunal was required to confirm the decision to dismiss the application. Legal unreasonableness is not established.
In this context and also more generally, I have borne in mind that in oral submissions today, the Applicant raised for the first time, a contention that he did not receive the Tribunal’s hearing invitation. He also told the court that he had not received the invitation to the case conference. He complained that people in his position from a non-English speaking background engaging with the visa application and review process had to rely on their migration agents. His complaint, in essence, was that he had not been provided with these invitations or informed of these invitations by his agent.
The Applicant was given several opportunities to elaborate on his concerns. Taking these complaints at their highest and notwithstanding the absence of evidence from the Applicant in that respect there is nothing in what he said to raise any concern that there is an issue of third-party fraud on the Tribunal in the sense considered in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189. It is well-established by subsequent cases (see SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 per Bennett, Reeves and Foster JJ at [22] and Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17 per Tamberlin, Finn and Dowsett JJ at [33]) that a negligent or inadvertent failure to inform, in the sense of a failure by a migration agent to inform an applicant of a hearing invitation, will not necessarily be sufficient to give rise to fraud. There is a heavy burden in proving fraud. Fraud was not alleged in the application. There is nothing in what the Applicant said today to indicate any concern that he is seeking to raise an allegation of third-party fraud as distinct from an allegation of negligence or indifference on the part of his migration agent. Even if the agent did not pass on the invitation to the hearing, that in itself does not establish jurisdictional error on the part of the Tribunal.
I note in this respect that this was not a concern that was raised with the Tribunal (notwithstanding that the Tribunal notified the Applicant of the hearing by SMS reminder sent to his personal telephone number). It is not something that could have been taken into account by the Tribunal in relation to the decisions that it made. It does not alter what is said above regarding to the absence of legal unreasonableness in relation to the decisions and procedures of the Tribunal.
The Applicant also contended generally that it was unfair that his application was refused in circumstances where he did not receive the invitation letter. While I accept that an applicant would understandably be concerned if he or she had not had documents passed on by a migration agent, that does not establish a lack of procedural fairness on the part of the Tribunal (and see s.422B of the Act).
It has not been established that the Tribunal fell into jurisdictional error arising out of the concerns the Applicant raises related to non-receipt of the hearing invitation and/or the case conference invitation.
Although the Applicant did not clarify whether he also claimed he did not receive the Tribunal’s dismissal decision from his agent, even if that is so it is not indicative of jurisdictional error. He clearly received the confirmation decision which was also sent to this migration agent. He attached copies of both decisions to his application to the court which he commenced within 35 days of the first Tribunal decision.
Insofar as the Applicant wishes to complain further in relation to his migration agent, that is not a matter that can be addressed in these proceedings. As I advised the Applicant, if he has concerns in this respect, they may be raised with the Migration Agents Registration Board and/or with the Minister for Immigration.
To the extent that the Applicant raised his protection claims with the court, he sought impermissible merits review.
As no jurisdictional error has been established, the application must be dismissed.
It is appropriate that the unsuccessful Applicant meet the costs of the First Respondent. The Applicant told the court that the amount sought was too much for him. I take this to be raising an issue of impecuniosity. The concerns the Applicant raises are matters that may be taken into account by the Minister in determining when and how to seek to recover costs. However, I am not satisfied that the asserted impecuniosity is a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent or such as to warrant a reduction in the amount of the costs. The Minister seeks the sum of $5,600. This is considerably less than the amount provided for in the Federal Circuit Court Rules 1994 (Cth). It is reasonable and appropriate in light of the nature of this and other similar matters.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 19 June 2019
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