DLS21 v Minister for Immigration, Citizen and Multicultural Affairs

[2023] FedCFamC2G 537

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DLS21 v Minister for Immigration, Citizen and Multicultural Affairs [2023] FedCFamC2G 537

File number(s):

MLG 2536 of 2021

Judgment of:

JUDGE J YOUNG

Date of judgment:

23 June 2023

Catchwords:

MIGRATION – application for review of Registrar’s decision – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – where applicant did not attend hearing before Tribunal – where applicant did not apply for reinstatement before Tribunal –found that grounds for judicial review have no reasonable prospects of success

Legislation:

Federal Circuit and Family Court of Australia Act 2021 s 143(2).

Migration Act 1958 (Cth) ss, 425, 425(1), 425A(1), 425A(2)(a), 425A(3), 425A(4), 426(1)(a), 426(1)(b), 426A, 426A(1A)(b), 426A(1E), 426B(2)(a)-(d), 426B(5), 426B(5)(a)-(b), 426B(6), 441A(5), 441C(5).

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 13.13(a), 21.02(1)-(2), 21.04.

Migration Regulations 1994 (Cth) reg 4.35D.

Division:

Division 2 General Federal Law

Number of paragraphs:

51

Date of hearing:

14 June 2023

Place:

Melbourne

Counsel for the Applicant:

Litigant in person

Counsel for the First Respondent:

Mr Tran of Mills Oakley

ORDERS

MLG 2536 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DLS21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE J YOUNG
DATE OF ORDER:	23 June 2023

THE COURT ORDERS THAT:

1.The applicant’s Application for Review of a Registrar’s Decision filed on 26 May 2023 be dismissed.

2.The applicant pay the first respondent’s costs in this Application in the fixed amount of $600.00

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE J YOUNG:

INTRODUCTION

1. This is an Application for Review of a Registrar’s Decision made on 28 April 2023.

2. The Application before the Registrar was an Application by the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), for summary dismissal of the applicant’s Application for judicial review filed on 3 October 2021.

3. The Registrar made orders for the applicant’s Application to be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) and that the applicant pay the first respondent’s costs fixed in the amount of $4,189.38.

4. Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, the Minister’s Application for summary dismissal is to be considered afresh.

   BACKGROUND

5. The applicant is a citizen of China who arrived in Australia on 18 July 2017 on a Visitor visa.

   Application for protection visa on 7 September 2017

6. On 7 September 2017 the applicant applied for a Protection (subclass 866) visa (Visa) on the basis that he claimed to fear harm from loan sharks due to outstanding debts he owed to them. The applicant’s Visa application provides the further following reasons as to why he left China:

   (a)as he failed to pay back the loan, the loan shark contacted the local gang who began harassing the applicant for the money;

   (b)the local gang monitored the applicant’s house every day and sent people to follow him and his family wherever they went;

   (c)the local gang smashed the windows of the applicant’s house, broke in multiple times and took valuables;

   (d)the applicant went to the police and was not given any assistance; and

   (e)the local gang broke into the applicant’s house and his wife was injured and taken to hospital.

7. The applicant claimed to fear harm if he were to return to China, as he believes he would be taken away by the gang and receive brutal treatment. The applicant further stated that he could not relocate elsewhere in China because “everywhere is the same in China” and the government colludes with the gangs.

8. This was the extent of the information provided by the applicant in support of his protection visa application; no further evidence was put forward by or on behalf of the applicant.

9. The Department of Immigration and Border Protection (Department) confirmed receipt of the application by correspondence sent on dated 7 September 2017. In that correspondence, the applicant was advised the Department may make a decision on his application without requesting further information and that he should therefore “provide us with all the information you feel is relevant”. The applicant was also advised in this letter of the need for him to keep the Department updated with regard to his contact details.

10. On 15 February 2018, the applicant was invited to attend an interview with the Department on 6 March 2018 to discuss his visa application and claims for protection.

    Refusal of protection visa on 6 March 2018

11. On 6 March 2018, a delegate of the Minister (delegate) refused the applicant’s application for a protection visa.

12. It is evident from the delegate’s decision that the applicant failed to attend the interview scheduled for 6 March 2018, nor did he provide the Department with any explanation as to his non-attendance. In those circumstances, the delegate proceeded to make a decision on the basis of the information before the Department.

13. A copy of the delegate’s decision, as well as information about the applicant’s rights of review, was sent to the applicant to his nominated email address on 6 March 2018.

    Application for review at Tribunal on 27 March 2018

14. On 27 March 2018, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. In the application for review, the applicant nominated the email address <[email protected]> (applicant’s email address) for correspondence and provided the mobile number “xxxxx xxx67” (applicant’s mobile).

15. In correspondence from the Tribunal dated 27 March 2018 confirming receipt of his application, the applicant was advised if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. The applicant was also advised of the need to keep the Tribunal updated with regard to his contact details.

16. On 23 July 2021 the Tribunal emailed the applicant enclosing an invitation for him to attend a hearing by telephone on 13 August 2021 at 10.30am with an information sheet attached. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant did not respond to the hearing invitation.

17. The Tribunal sent SMS reminders of the hearing to the applicant on 6 August 2021 and 12 August 2021.

18. The applicant did not attend the hearing on 13 August 2021. The Tribunal telephoned the applicant at 10.15am, 10.30am and 11.00am. At 11.00am the Tribunal concluded the hearing on the basis that the applicant did not appear. Pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (Act) the Tribunal dismissed the application for non-appearance (dismissal decision).

19. On 16 August 2021 the Tribunal sent a copy of the dismissal decision to the applicant’s email address. The notification letter sent with the dismissal decision informed the applicant that reinstatement of the application could be sought by 30 August 2021. The applicant was also provided with an information sheet entitled “information about dismissal of applications” which informed the applicant that if reinstatement was not sought within 14 days the Tribunal must confirm the decision to dismiss the application.

20. The applicant did not apply for reinstatement of the application.

21. On 1 September 2021 the Tribunal confirmed its original decision to dismiss the application (confirmation decision).

    Dismissal decision

22. The Tribunal found that the applicant was invited pursuant to s 425 of the Act to appear before it, by telephone, on 13 August 2021 at 10.30am but did not appear at the scheduled time and place. The Tribunal found that the applicant was properly invited to a hearing in accordance with s 441A(5) and that two SMS hearing reminders were sent to the applicant prior to the hearing. The Tribunal found that no reason for the non-appearance was given. The Tribunal dismissed the application without further consideration of the application or the information before it.

    Confirmation decision

23. The Tribunal recorded that on 13 August 2021 the application was dismissed pursuant to s 426A(1A)(b) of the Act, the applicant had been notified of the dismissal decision and had been given a copy of the written statement in accordance with s 426B(5) of the Act. The Tribunal further recorded that the applicant had been advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. The Tribunal found that as the applicant did not apply for reinstatement within the 14 day period it must confirm the decision to dismiss the application.

    PROCEEDINGS IN THIS COURT

24. On 3 October 2021, the applicant filed judicial review of the Tribunal’s decision in this Court. In that application, the applicant sought orders quashing the Tribunal’s decision and an order directing the Tribunal to determine the applicant’s application according to law.

25. In the Response filed 10 December 2021, the Minister did not seek orders that the Application be dismissed pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘Rules’).

26. At the callover hearing on 14 February 2023, Orders were made listing the matter for a summary dismissal hearing. The requirement of rule 13.12 was dispensed with, meaning that the Minister was not required to file an Application for summary dismissal. Procedural orders were also made for the filing of a court book, written submissions and any additional evidence upon which the parties sought to rely. Relevantly, Order 6.2 of the Orders permitted the applicant to file any Amended Application with proper particular of the grounds of the Application. The applicant did not filed any Amended Application, nor did he file any written submissions.

    Summary dismissal hearing on 28 April 2023

27. As stated, the summary dismissal Application was heard and determined by the Registrar on 28 April 2023, with the Registrar dismissing the Application for judicial review of the Tribunal’s decision.

    Application for review of a Registrar’s decision filed on 26 May 2023

28. As stated, the Application presently before the Court is an Application for a review of the Registrar’s decision, which was filed by the applicant on 26 May 2023, and that Application is to be conducted as a hearing de novo.

29. The Minister relies upon its written submissions filed on 6 April 2023.

30. At the hearing before me the applicant appeared on his own behalf, assisted by a Mandarin interpreter.

    Late filing of application for review of a Registrar’s decision

31. Before turning to the summary dismissal Application, the preliminary issue of the late filing of the Application for review of the Registrar’s decision needs to be addressed.

32. Rule 21.02(1) of the Rules provides that an Application for review of a Registrar’s decision must be made within 7 days. Rule 21.02(2) provides that time may be extended in a proceeding by the Court ‘on any terms that the Court … thinks fit’.

33. The Registrar’s decision was made on 28 April 2023. An Application for review of that decision in this Court was therefore required to be made no later than 5 May 2023. The Application for review of the Registrar’s decision was not made until 26 May 2023.

34. Accordingly, the Application was made 21 days after the expiry of the statutory timeframe.

35. The Minister opposed any extension of time in this matter. The applicant said that the reasons for the late filing were that he was unaware of the time frame for lodgement and did not speak English.

36. Ultimately, in the circumstances of this case, I am satisfied in this instance that it is appropriate for the time for filing the review Application to be extended. This is in circumstances where the applicant is self-represented, has very limited English skills and there is no particular prejudice to the Minister (other than as to costs) if time were to be extended.

    SUMMARY DISMISSAL PRINCIPLES

37. In considering an application for summary dismissal either under rule 13.13(a) of the Rules or under section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), it is necessary to establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim.[1] It is not necessary for the Court to be satisfied that the applicant is bound to fail.

    [1] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473.

38. The discretion to summarily dismiss an Application must be exercised with caution given it is an Order made at a preliminary stage in proceedings in the absence of a full and complete factual matrix and argument.[2] However, what is required is “a critical examination of the available material to determine whether there is a real question of law of fact which should be decided at trial”[3]. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.

    [2] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 47

    [3] Spencer v The Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 47; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641, [46].

    GROUNDS OF REVIEW

39. In his substantive Application for judicial review, the applicant raises the following grounds (without amendment):

    There exist jurisdictional errors.

    1.The Tribunal did not consider all relevant material when making decision.

    2.Tribunal did not treat my case fairly. Tribunal dismissed my case simply because I did not attend the hearing.

    3.The Tribunal did not set out reasons why I should not be protected according to refugee convention.

40. The applicant was invited to elaborate on his grounds for review and made the following submissions for the consideration of the Court:

    (a)the Tribunal acted unfairly in dismissing the applicant’s application because he did not attend the hearing;

    (b)the Tribunal erred in not providing reasons as to why the applicant should not be protected according to the refugee convention.

41. These submissions reiterate the grounds already pleaded by the applicant.

42. For the following reasons I am satisfied that the grounds of the substantive Application for judicial review have no reasonable prospects of success.

43. All of the grounds of review pleaded are misconceived and may conveniently be dealt with together. Under s 426A of the Act, when an applicant is properly invited to attend a hearing but fails to do so, s 426A(1A)(b) empowers the Tribunal to dismiss the application without further consideration of the application or information before it.

44. The Tribunal’s hearing invitation complied with the applicable legislative requirements because it:

    (a)contained an invitation to the applicant to appear before it to give evidence as required by s 425(1) and s 426(1)(a) of the Act;

    (b)notified the applicant that he could give the Tribunal written notice to obtain oral evidence from a person or person as required by s 426(1)(b);

    (c)notified the applicant of the specified day, time and place of the hearing as required by s 425A(1);

    (d)was given to the applicant by one of the methods specified in s 441A of the Act namely, the applicant’s email address, which was an approved method for the Tribunal to give the document to the applicant as was required by s 425A(2)(a);

    (e)complied with s 441A(5) by transmitting the document by email to the last email address provided to the Tribunal by the recipient in connection with the review;

    (f)was taken to have been received by the applicant at the end of the day on which the document was transmitted in accordance with s 441C(5) (i.e., on 23 July 2021);

    (g)complied with s 425A(3) by providing the applicant with a period of notice of the hearing that was at least the prescribed period of 14 days (as specified by reg 4.35D of the Migration Regulations 1994 (Cth); and

    (h)complied with s 425A(4) by containing a statement of the effect of s 426A about options available to the Tribunal if the applicant failed to appear before it.

45. The applicant was therefore validly invited to the hearing and accordingly, the Tribunal was not required to consider the applicant’s protection claims or any “relevant material”. As the applicant failed to attend the hearing, the Tribunal could not ask questions about the reasons why the applicant ought to be protected “according to refugee convention”. For those reasons, the Tribunal was also not required to give reasons as to why the applicant ought not be so protected.

46. Further, the Tribunal’s exercise of power in the present case was reasonable because the applicant had been properly notified of the hearing, including by two SMS reminders close to the hearing date, informed as to the consequence of failing to attend and had not engaged with the Tribunal other than to lodge the initial application for review. I also note that the applicant did not attend the interview before the delegate. Additionally, the Tribunal’s hearing record indicates that the Tribunal waited 30 minutes after the scheduled start time and attempted to call the applicant on three separate occasions, before determining the applicant had not appeared and no reason for non-appearance was given nor a request for adjournment was made.

47. Although the applicant does not claim he did not receive the Tribunal’s letter of 13 August 2021 notifying him of the non-appearance decision and inviting him to apply for reinstatement, that correspondence also complied with the statutory requirements as it:

    (a)enclosed a written statement of decision which complied with the requirements of subsections 426B(2)(a) to (d);

    (b)was given to the applicant within 14 days of the date of the decision (s 426B(5)(a));

    (c)was sent to the applicant by one of the methods specified in s 441A (namely, by email) as required by s 426B(5)(b); and

    (d)informed the applicant (in an attached information sheet) that he had 14 days in which to apply for reinstatement of the matter and, if he failed to apply for reinstatement within 14 days, the decision to dismiss the application must be confirmed (s 426B(6)).

48. Further, the applicant did not file for reinstatement of the application within 14 days. Therefore the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act.

49. For the above reasons, neither the dismissal decision nor the confirmation decision were unfair nor was the conduct of the Tribunal unreasonable.

    CONCLUSION

1. For the above reasons I find that the applicant’s substantive application has no reasonable prospects of success.

2. Accordingly, I make the orders set out at the commencement of this judgment.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       23 June 2023