DLN19 v Minister of Immigration - [2020] FCCA 3152

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLN19 & ANOR v MINISTER OF IMMIGRATION & ANOR

[2020] FCCA 3152

Catchwords:
MIGRATION – Application for judicial review of decision made by the Administrative Appeals Tribunal – no appearance by applicants before Tribunal – whether Tribunal acted unreasonably in determining the application without taking any further action to allow or enable the applicants to appear before the Tribunal – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.425, 426A, 430.

Cases cited:

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC

[2006] FCAFC 73

SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613

First Applicant:

DLN19

Second Applicant:

DLO19

First Respondent:

MINISTER OF IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2333 of 2019

Judgment of:

Judge Obradovic

Hearing date:

11 November 2020

Date of Last Submission:

11 November 2020

Delivered at:

Parramatta

Delivered on:

11 November 2020

REPRESENTATION

Appearance for the Applicants:

First Applicant by telephone and there being no appearance by the Second Applicant

Appearing for the First Respondent:

Ms Ren

Solicitors for the First Respondent:

Australian Government Solicitors

ORDERS

The Application filed on 10 September 2019 is dismissed.
The Applicants are to pay the First Respondent’s costs in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2333 of 2019

DLN19

First Applicant

DLO19

Second Applicant

And

MINISTER OF IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-Tempore; Revised from Transcript)

The first applicant and the second applicant are spouses who applied for a protection visa which was initially denied by the Minister’s delegate on 7 October 2016. Thereafter, upon seeking review of the decision by the Administrative Appeals Tribunal (“the Tribunal”), the Tribunal affirmed the delegate’s decision not to grant the visas. The Tribunal’s decision is dated 14 August 2019.
The Court is satisfied having regard to the grounds of the application, the written submissions which were filed on 16 March 2020 and the further oral submissions made today, that the applicants seek an impermissible merits review of the Tribunal’s decision and that no ground of judicial review has been established.
The applicants say that they did not appear before the Tribunal hearing as they did not receive any SMS before the hearing to remind them to attend the hearing, and for that reason they failed to appear before the Tribunal.
The submissions which have been filed by the applicants misunderstand the powers that the Court has in a judicial review application. The applicants implore the Court to consider approving the extension of the applicant’s visa, which is not the Court’s task, nor does the Court have the power to do so.
The applicants are citizens of China who arrived in Australia on 23 March 2016 on visitor visas. On 8 April 2016 the applicants lodged a joint protection visa application. The grounds of the application may be summarised as follows[1]:
5.1   The applicants’ son-in-law is an underground Catholic and he suffered persecution because of his beliefs. As a result, at the end of September 2015 the family was subjected to constant harassment, monitoring and extortion.
5.2   A developer [name omitted] who was the relative of the mayor of Tonghua Country, wanted to purchase the applicants’ farm. The market value of their farm was $1 million yuan but [the developer] offered only $400,000 yuan.
5.3   On 18 December 2015 a group of gangs smashed their farm. She telephoned the police but they did not stop the gangs. The police said ‘your family is a cult, you deserve the smashing.’
5.4   She sent a petition to the Tonghua city government in relation to [the developer] She did not receive a reply.
5.5   On 3 January 2016 she was arrested in a city-wide mass arrest of petitioners by the Tonghua city police. She was detained in Tonghua City Detention Centre for 2 weeks where she was abused and persecuted. Her home was also searched.
5.6   In less than one week her health deteriorated so much that the Detention Centre refused to keep her and took her to the police. The police told her that she would be severely punished. On 14 January 2016 she paid $28,000 yuan and was released. On the same day, the police searched her home a second time. She was threatened not to lodge a petition again.
[1] Paragraph 5 of the First Respondent’s written submissions filed 17 March 2020.
On 29 September 2016, the applicants attended an interview with the delegate and on 7 October 2016 the delegate refused to grant the applicants’ visas based on the finding that the applicant had fabricated her claims. On 7 November 2016, the applicants applied to the Tribunal for review, at that time nominating Ms Meng Meng Fu as their authorised representative. On 26 March 2019, the first applicant advised the Tribunal that Ms Fu was no longer representing her and that she was no longer authorised to receive documents on her behalf. The applicant attached a completed change of contact details form which provided an email and a mobile phone number.
By further email dated 1 May 2019, the second applicant informed the Tribunal to direct all correspondence to the applicants directly and nominated the same email address and phone number as provided by the first applicant. On 2 July 2019 via an email to the nominated email address, the Tribunal informed the applicants that it was not able to make a favourable decision on the information that it had before it and it invited the applicants to attend a hearing on 13 August 2019. This was in accordance with the statutory obligations of the Tribunal, being an invitation to attend a hearing in accordance with s.425 of the Migration Act 1958 (Cth) (“the Act”).
On 6 and 12 August 2019, the Tribunal sent to the applicants’ text messages to the nominated mobile phone number, reminding them of the hearing. The Tribunal received a failure notification; that is, that the messages failed to deliver. On 13 August 2019, the applicants failed to appear before the Tribunal and the Tribunal, on 14 August 2019, proceeded to make a decision on the review, pursuant to s.426A(1A)(a) of the Act, to affirm the delegate’s decision. The Tribunal provided a written statement pursuant to s.430 of the Act and made a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.
In Minister for Immigration and Citizenship v Li[2], the Court held that an unreasonable refusal to grant an adjournment can result in jurisdictional error. There was no application for an adjournment in this case and certainly, there is no evidence that there was any unreasonable refusal to adjourn the matter. Where there has been compliance with s.425 of the Act, as there has been in the present case, the Tribunal is not required to make further enquiries if the applicant fails to appear. This much was made clear in SZJQP v Minister for Immigration and Citizenship[3].
[2] [2013] HCA 18
[3] [2007] FCA 1613 at [32]
Furthermore, the Tribunal is not required to give reasons for its exercise of discretion under s.426A. As long as the Tribunal has complied with s.426A, it is under no further obligation to search any of the papers with a view to discovering if there was some other way of contacting the applicant.[4]
[4] Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]
In the circumstances presently before me the applicants complain that they did not receive the SMS reminders. They do not say that they did not receive the initial invitation for hearing. The Court is not satisfied that the Tribunal acted unreasonably in the requisite sense in hearing the application and determining the application in the absence of the applicant.
The Court notes that in circumstances where it was the applicant who had applied to the Tribunal, the applicants who were aware through documents and communications with the Tribunal about how they could communicate with the Tribunal by notifying the Tribunal of an email address and a new telephone number and after notification of the hearing date being sent to their email address, that it was a matter for the applicants to ensure that they were at the right place at the right time. There is no evidence to suggest that in all of the circumstances, the Tribunal acted unreasonably in dealing with the application pursuant to s.426A(1A)(a).
Furthermore, having regard to the Tribunal’s decision overall, the Tribunal’s reasons in affirming the delegate’s decision showed that there was intelligible justification for the decision as a whole. I therefore dismiss the initiating application filed 10 September 2019.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate:

Date: 20 November 2020