DKU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3417

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3417

File number(s):	SYG 2311 of 2019
Judgment of:	JUDGE DRIVER
Date of judgment:	7 December 2020
Catchwords:	MIGRATION – review of Administrative Appeals Tribunal decision – dismissal for non-appearance – interlocutory dismissal of show cause application – no arguable case of jurisdictional error
Legislation:	Migration Act 1958 (Cth) ss 426A(1A)(b), 426A(1E), 426B(5), 441C(5)
Number of paragraphs:	27
Date of hearing:	7 December 2020
Place:	Sydney
Applicant:	Appeared in person
Solicitor for the Respondent	Mr Pasas

ORDERS

SYG 2311 of 2019

BETWEEN:

DKU19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	7 DECEMBER 2020

THE COURT ORDERS THAT:

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 in the sum of $3,737 in accordance with rule 44.15(1) ad item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

REASONS FOR JUDGMENT
Revised from transcript

JUDGE DRIVER

BACKGROUND

1. By application filed on 6 September 2019, the applicant seeks judicial review of two decisions of the Administrative Appeals Tribunal (Tribunal).  The first decision, made on 19 August 2019, was to dismiss the review application on account of the applicant’s failure to appear (dismissal decision).  The applicant had been invited to a hearing on 16 August 2019 but did not attend.

2. The second decision was made on 4 September 2019 and confirmed the dismissal decision (confirmation decision).  In the interim, the applicant had been invited to request reinstatement.  He had purported to do so but did not do so within the period of 14 days prescribed.

3. The applicant’s request for reinstatement asserted illness.  He provided a medical certificate which asserted that the applicant was unfit for duty on 18 to 20 August 2019.  There was thus no assertion of illness on the date of the hearing to which the applicant was invited on 16 August 2019.

4. The applicant now relies on an amended application that was filed on 12 November 2019.  There are two grounds in it: 

   1.The AAT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the evidence of the my father being harmed in China and I feared to return.

   2.Particulars:

   a.My “Personal Statement” in support of the application for a protection visa stated

   b.In my interview with the First Respondent I stated that I feared to go back to China because:

   i.I would be wanted by police.

   ii.I wanted to stand by the side of justice and help my father.

   c.At the AAT:

   i.AAT did not give me hearing to present argument and give evidence, simply Dismissed my review.

   ii.The AAT did not send message to my phone, because I have never received one.

   (errors in original)

   THE CURRENT PROCEEDINGS

5. The application is supported by a short affidavit filed with it, which I received.  I also have before me, as evidence, the court book filed on 14 November 2019.

6. The applicant attended today’s hearing by telephone.  He told me that he did not have the court book with him.  He said it was with a friend who had been assisting him with his judicial review application.  He did not object to my receipt of the court book as evidence once I had explained its contents. 

7. The applicant also denied receipt of the Minister’s outline of submissions filed on 17 November 2020.  In view of that, I called upon the Minister’s solicitor to explain the Minister’s submissions orally.  The background to this matter is set out in those submissions, which I adopt. 

8. The applicant, a citizen of the People's Republic of China, arrived in Australia as the holder of a Higher Education Sector (Subclass 573) visa (student visa) on 3 March 2013.[1] On 1 May 2015, the Minister’s Department issued a notice of intention to consider cancellation of the student visa.[2]

   [1] CB 50.

   [2] CB 50.

9. On 5 May 2015, the applicant applied for the protection visa.[3]        

   [3] CB 50.

10. On 9 September, the delegate refused to grant the applicant a protection visa.[4]

    [4] CB 46-58.

11. On 27 September 2016, the applicant applied to the Tribunal for review of the Minister’s delegate's decision.[5] In his application, the applicant provided his personal contact details as well as those of his migration agent (agent) as his authorised representative.[6] The applicant's nominated email address was identical to the nominated email address of his agent.[7] By email dated 17 July 2019, the Tribunal invited the applicant to attend a hearing scheduled on 16 August 2019.[8] On 9 August 2019 and 15 August 2019, the Tribunal sent SMS messages to the applicant notifying him that the hearing was scheduled on 16 August 2019.[9] The applicant did not attend the scheduled hearing.[10]

    [5] CB 59.

    [6] CB 59-60.

    [7] CB 60.

    [8] CB 71.

    [9] CB 98.

    [10] CB 76.

12. On 19 August 2019, the Tribunal dismissed the application under s 426A(1A)(b) of the Migration Act 1958 (Cth) (Migration Act).[11] The Tribunal considered that the applicant had been invited to attend the hearing and that the invitation stated that if he did not attend, the Tribunal may dismiss the application without further consideration of the application or the information before it.[12] The Tribunal also noted that the applicant was sent SMS messages in relation to the hearing and that no satisfactory reason for the applicant's non-appearance had been given.[13]

    [11] CB 83.

    [12] CB 83.

    [13] CB 98.

13. The applicant was notified of the dismissal decision by letter despatched under cover of an email addressed to his agent on 19 August 2019.[14] The letter stated that the applicant had 14 days in which to submit a written application for reinstatement.[15] On 4 September 2019, the Tribunal confirmed its decision to dismiss the application.[16]

    [14] CB 80.

    [15] CB 82.

    [16] CB 96-97.

14. The agent applied on the applicant's behalf for reinstatement of his application by email on 4 September 2019, two days after the expiry of the 14 day period (2 September 2019).[17] In her email, the agent stated that the applicant was “very sick on the listed hearing date”,[18] and attached a medical certificate dated 13 August 2015 in support of the application for reinstatement. Curiously, the medical certificate recorded that the Applicant was “unfit for duty on 18/08/2019 to 20/08/2019”.[19] The curiosity arises because the hearing was scheduled to take place on 16 August 2019, which is outside of the certificate's date range.

    [17] CB 91.

    [18] CB 91.

    [19] CB 92.

15. The applicant did not provide the Court with any written submissions. I invited oral submissions from the applicant after explaining to him the nature of today’s proceedings.  He told me that he had nothing to say.  I invited the applicant to make submissions in reply, having heard the submissions from the Minister.  Again, the applicant had nothing to say.

    CONSIDERATION

16. It is, in my view, plain from the material before the Court that the Tribunal properly invited the applicant to the hearing.  The applicant failed to attend on the appointed day, and the Tribunal was entitled to dismiss the application on account of the applicant’s non-attendance.  The applicant’s request for a reinstatement was not made within time, and the Tribunal was correct to confirm the dismissal decision.  In any event, the purported explanation for non-attendance by reason of illness was not, on its face, persuasive.

17. In other respects, I agree with the Minister’s submissions in relation to the grounds of review advanced.   

18. The two issues in this case are whether the confirmation decision and the dismissal decision were legally correct.

19. The dismissal decision turned on the applicant's non-appearance at the hearing, which enlivened the Tribunal's discretion to dismiss the application under s 426A(1A)(b) of the Migration Act. Clearly, there can be no dispute that the applicant did not attend the hearing and, as such, it was legally proper for the Tribunal to make the dismissal decision that it did.

20. It was legally proper for the Tribunal to so decide because, first, none of the grounds of review suggest that the applicant did not receive the invitation dated 17 July 2019 to the scheduled hearing. Secondly, the agent's explanation for the applicant's non-appearance in his reinstatement application demonstrates that he was aware of the hearing but did not attend because of an asserted illness.[20] Thirdly, contrary to the applicant's assertion that the Tribunal failed to send messages to his phone, the records of the Tribunal show that on 9 September 2019 and on 15 September 2019, the Tribunal sent SMS messages to the mobile number provided by the applicant in his application, notifying him of the hearing. No delivery failure messages were received in relation to these SMS messages. In any case, the issue of whether the applicant received the SMS messages is not material given that the applicant was properly invited to the hearing by letter communicated to his agent.

    [20] CB 91.

21. The confirmation decision turned on the applicant's failure to apply for reinstatement within 14 days of receiving the dismissal statement. The Tribunal sent the dismissal statement by email to the agent's email address on 19 August 2019, in accordance with s 426B(5) of the Migration Act. The email also attached a covering letter and information sheet, both of which stated that the applicant could apply for reinstatement of the application within 14 days and that failure to do so would result in confirmation of the dismissal decision. The agent was taken to have received the email at the end of the day on which it was transmitted (19 August 2019) in accordance with s 441C(5) of the Migration Act.

22. The applicant's application for reinstatement was made on 4 September 2019, that is two days late. As such, the Tribunal was unable to consider the application, and bound to confirm the dismissal decision without the exercise of any discretion in accordance with s 426A(1E) of the Migration Act.

23. The grounds of review as pleaded by the applicant are otherwise without substance. The Tribunal's decision to dismiss the application precluded it from considering the applicant's application for review of the Minister’s Delegate's decision and any material in connection to the application for review.

    CONCLUSION

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

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

26. The Minister also seeks an order for costs in accordance with the Court’s scale.  The applicant told me that he understood the issue in relation to the costs.

27. 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-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:       

Dated:       15 December 2020