DKK19 v Minister for Immigration

[2020] FCCA 545

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKK19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 545

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.362B, 425A, 426A, 426B, 430, 441A, 441C
Migration Regulations 1994 (Cth)

Applicant: DKK19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2300 of 2019

Judgment of: Judge Driver

Hearing date: 12 March 2020

Delivered at: Sydney

Delivered on: 12 March 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L Leerdam of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2300 of 2019

DKK19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 13 August 2019.  The Tribunal on that day confirmed an earlier decision to dismiss the review application by the applicant.  That was a non‑appearance decision made on 24 July 2019.  Although the applicant has not applied to review the earlier non‑appearance decision, the application could have been amended to include it, with a grant of an extension of time if necessary. 

2. Background facts in this matter are set out appropriately in the Minister’s written submissions.   

3. The applicant is a female citizen of China born on 18 March 1966.[1] The applicant arrived in Australia on 23 August 2015.[2]

   [1] Court Book (CB) 37.

   [2] CB 44.

4. The applicant applied for a protection (Class XA) (Subclass 866) visa on 23 November 2015.[3] The applicant’s claims were set out in a statement accompanying the application.[4] The applicant’s claims may be summarised as follows:

   a)the applicant claimed to have worked in a shoe manufacturing company where the chemicals used caused health problems and workers were fired due to illness with no compensation;

   b)in June 2015, 500 workers protested in front of the factory and subsequently went on strike. The company called in the police who drove the workers away, arrested the applicant and more than 10 protest leaders, and detained them for 10 days. Many workers were sacked and not paid due to their participation in the strike;

   c)the applicant claimed to have taken her story to the media, but no one wanted to interview her. A colleague criticised the government's indifference online and was detained for 10 days;

   d)the applicant is scared to live in China because the government is corrupt and protects the rich.

   [3] CB 1.

   [4] CB 35.

5. On 26 October 2016, the Minister’s Department wrote to the applicant, inviting her to attend an interview scheduled for 7 November 2016. The applicant did not attend the interview and no explanation was provided for her non-attendance.[5]

   [5] CB 48.

6. On 14 November 2016, the application was refused.[6]

   [6] CB 44.

7. The applicant applied to the Tribunal for review of the delegate's decision on 13 December 2016.[7]

   [7] CB 51.

8. In the application for review the applicant provided an email address and a mobile phone number.

9. The Tribunal wrote to the applicant on 25 June 2019 inviting her to attend a hearing on 18 July 2019. The invitation was sent by email to the applicant’s email address.[8]  The applicant did not respond.

   [8] CB 64.

10. SMS reminders were sent to the applicant’s mobile phone on 11 July 2019 and on 17 July 20119, however delivery of the messages failed.[9]

    [9] CB 73.

11. The applicant did not attend the scheduled hearing on 18 July 2019.[10]

    [10] CB 74-76.

12. On 24 July 2019 the Tribunal dismissed the application pursuant to s.426(1A)(b) of the Migration Act 1958 (Cth) (Migration) Act (non-appearance decision):[11]

    a)the Tribunal noted at [1] that the applicant had been sent SMS reminders about the hearing five business days and one business day before the scheduled hearing but that delivery failed on both occasions;

    b)the Tribunal was satisfied at [2] that the applicant was properly invited to a hearing in accordance with s.441A(5) and that the invitation had not been returned to the sender. The Tribunal considered that no satisfactory reason for the non-appearance had been given and dismissed the application.

    [11] CB 80.

13. On 24 July 2019, the Tribunal wrote to the applicant notifying her of the decision to dismiss the application and advised that applicant that she could apply for reinstatement by 7 August 2019. The letter was sent by email to the applicant’s email address.[12]

    [12] CB 79.

14. On 13 August 2019 the Tribunal confirmed its decision to dismiss the application and affirmed the decision under review (confirmation decision):[13]

    a)the Tribunal noted at [3] that the applicant was notified of the non-appearance decision and given a copy of the written statement setting out the decision and reasons for the decision in accordance with s.426B(5) of the Migration Act;

    b)the Tribunal also noted at [3] that the review applicant was advised that reinstatement could be sought within 14 days of receiving the non-appearance decision. The Tribunal noted that the review applicant was advised that reinstatement could be sought within 14 days of receiving the non-appearance decision and that a failure to apply for reinstatement would result in confirmation of the non-appearance decision; and

    c)as the applicant did not apply for reinstatement of the application within the 14 day period, the Tribunal found at [4] that it was obliged to confirm he decision to dismiss the application and in those circumstances the decision under review was taken to be affirmed.

    [13] CB 86.

15. The Tribunal sent a letter to the applicant notifying her of the confirmation decision on 13 August 2019. The letter was sent by email to the applicant’s email address.[14]

    [14] CB 85.

16. These proceedings began with a show cause application filed on 10 September 2019.  The applicant continues to rely upon that application.  The four grounds in it are:

    Tribunal didn't consider my claims.

    Tribunal didn’t consider I was harmed by the government in China.

    Tribunal didn't consider I would be harmed if I return to China.

    My case was not fairly treated and there exists procedural unfairness.

    Thus, there exists jurisdictional error.

17. The applicant also relies upon an affidavit filed with her application which refers to her fears and claims for protection.  I received that as a submission.

18. I have before me as evidence the court book filed on 6 November 2019.  The applicant denied receipt of the court book.  Exhibit R1 is a letter dated 8 November 2019.  That establishes that the court book was sent to the applicant at her nominated address for service by courier.  I am satisfied that the applicant has not been disadvantaged by the late delivery of the court book.  She had no objection to my receipt of the documents in the court book as evidence. 

19. I invited oral submissions from the applicant.  She referred to her fears and claims for protection.  She considers that the Tribunal decision is not fair as the Tribunal did not consider her claims.  I explained to the applicant the process followed by the Tribunal following her failure to appear at the hearing to which she was invited.  She did not find any fault with that process but asked me to consider her claims for protection.  As I explained to the applicant, those protection claims are outside the parameters of this Court’s jurisdiction.

20. In my view, the process followed by the Tribunal in this case was without any legal error.  The Minister’s submissions deal adequately with the grounds of review.   

21. Where the applicant did not appear at the hearing before the Tribunal, it was open to the Tribunal to dismiss the application pursuant to s.362B(1A)(b) of the Migration Act and in the absence of the applicant seeking reinstatement, the Tribunal was required to confirm its non-appearance. Accordingly, the applicant's grounds cannot establish jurisdictional error. The applicant's grounds are discussed further below.

22. In so far as Grounds 1 - 3 assert that the Tribunal did not consider the applicant’s claims, the grounds do not contain any meaningful content in light of the dismissal of the application for non-appearance.

23. The fourth ground claims that there was procedural unfairness, but does not identify what error the Tribunal is alleged to have made. For the reasons below, there was no error in the Tribunal’s procedure.

Invitation to attend a hearing

1. The applicant was invited to a hearing as required by s.425 of the Migration Act, in accordance with the requirements in s.441A of the Migration Act:

   a)the hearing invitation advised the applicant of the time, date and location of the hearing as required under s.425A(1) of the Migration Act;

   b)the hearing invitation was given by one of the methods specified in s.441A of the Migration Act, as required by s.425A(2)(a). The Tribunal transmitted the document by email to the last email address provided by the applicant to the Tribunal in connection with the review, in accordance with s.441A(5)(b) of the Migration Act;

   c)the hearing invitation gave the applicant at least the prescribed period of notice of the hearing, as required by s.452A(3) of the Migration Act. The prescribed period is found in regulation 4.35D of the Migration Regulations 1994 (Cth) and was 14 days from the day on which the applicant was taken to have received the hearing invitation. Pursuant to s.441C(5) of the Migration Act, the applicant was taken to have received the hearing invitation at the end of the day on which the email was transmitted, being 25 June 2019. This provided the applicant in excess of 14 days' notice of the hearing listed on 18 July 2019;

   d)the hearing invitation advised the applicant of the effect of s.426A of the Migration Act, as required by s.425A(4).

Dismissal for non-appearance

1. As the applicant was invited to attend the hearing in accordance with the statutory requirements, when she failed to attend the hearing on 18 July 2019, the Tribunal’s power under s.426A of the Migration Act was enlivened. Pursuant to s.426A(1A)(b) the Tribunal had the power to dismiss the applicant without any further consideration of the application.

2. This was a discretionary power and the Tribunal was required to exercise it reasonably. There was nothing out of the ordinary, exceptional or unusual in this case and it was not legally unreasonable for the Tribunal to dismiss the application under s.426A:

   a)the applicant contacted the Tribunal using her nominated email address on 1 January 2019, to request a letter for renewal of her Medicare card.  This indicates that the applicant was using the nominated email address at least until early 2019 and was aware of how to contact the Tribunal, should she have needed to update her contact details;

   b)a bridging visa application on the applicant's file, received by the Minister’s Department on 10 September 2019 provides the same email address. The Minister submits, and I accept, that this indicates the applicant was using this address for correspondence with the Minister’s Department after the Tribunal notified her of the confirmation decision.

Tribunal obliged to confirm decision

1. The applicant was notified of the dismissal by email on 24 July 2019, which was within 14 days of the non-appearance decision, as required by s.426B(5)(a) of the Migration Act. This email was accompanied by a letter and information sheet which described the effect of s.426A(1B)-(1F), as required by s.426B(6) of the Migration Act.

2. The notification was sent to the applicant to the email address provided by the applicant for the purposes of the review, a method specified in s.441A, as required by s.426B(5)(b). As the applicant was notified by email on 24 July 2019, she was taken to have received notification of the decision at the end of that day, pursuant to s.441C(5).

3. The applicant had 14 days after receiving notice of the non-appearance decision to apply to the Tribunal for reinstatement of the application (s.426A(1B)), which fell on 7 August 2019.

4. The applicant did not apply for reinstatement of the application, and accordingly the Tribunal was obliged to confirm the non-appearance decision, pursuant to s.426A(1E), by written statement under s.430 of the Migration Act.

5. The Tribunal notified the applicant of the confirmation decision by email on 13 August 2019. The email attached a statement of decision and reasons in accordance with s.430 of the Migration Act.

6. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

7. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

8. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,200.  The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

9. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,200.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  18 March 2020