Dpo17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 51
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DPO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 51
File number(s): MLG 1748 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 3 February 2022 Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal – Tribunal decided the matter on the papers due to applicant’s non-appearance at Tribunal hearing – whether the Tribunal acted unreasonably or without statutory power or failed to afford the applicant procedural fairness considered – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 5AAA, 422B, 425, 425A, 426A, 441A, 441C, 476, 499
Migration Regulations 1994 (Cth)
Cases cited: EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 3 February 2022 The Applicant appeared in person Solicitor for the Respondents: Mr T Creedon of Australian Government Solicitor ORDERS
MLG 1748 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DPO17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
3 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application filed on 10 August 2017 is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $6,000.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 10 August 2017 the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 August 2017 pursuant to s 426A(1A)(a) of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant, a citizen of Malaysia, was 24 years old when she applied for a Protection (Class XA) visa (visa) (Court Book (CB) 12). She arrived in Australia on 11 December 2014 as the holder of a visitor visa which was valid for 3 months (CB 25, 55). On 23 June 2015, the applicant applied for the visa (CB 12-39, 55).
The applicant claimed in her application that she fears harm in Malaysia on the basis of owing debt to money lenders, which arose as a result of her boyfriend listing her as a guarantor to business loans (CB 29-33).
On 27 June 2016, a delegate of the Minister (delegate) refused to grant the visa (CB 55-69). On 2 July 2016, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 70-71).
On 13 July 2017, the Tribunal sent an invitation to the applicant to appear before it on 31 July 2017 at 9:30am in order to give evidence and present arguments (CB 75-77). The applicant was sent two SMS reminders about the hearing, one on each of 24 July 2017 and 28 July 2017 (CB 83).
At 9:19am on 31 July 2017, the applicant telephoned the Tribunal to advise that she was unable to attend the scheduled hearing on account of her car having broken down on the highway. The Tribunal officer advised her to send an email explaining why she could not attend the hearing and advising them of her new address (CB 83).
At 1:36pm on the same day, the applicant emailed the Tribunal stating (at CB 81, errors in original):
Today i cannot come for hearing because morning i already to go Melbourne but mycar broken in higway because to far.. i waiting towing and late for come appointment hearing..
Later that day at 3:21pm, the Tribunal sent an email to the applicant stating (at CB 82):
Please be advised that the Presiding Member for this case kindly requests evidence of the tow-truck attending to pick up your vehicle and the Tribunal advises that the requested evidence be provided to the Tribunal by close of business 1 August 2017.
The applicant did not respond to the above-mentioned request, nor did she make any further contact with the Tribunal.
On 2 August 2017 at 12:32pm, the Tribunal affirmed the delegate’s decision to refuse the visa.
Tribunal decision
Before dealing with the substance of the applicant’s claims, the Tribunal noted that upon the applicant having failed to respond to its correspondence of 31 July 2017, which requested that she provide further evidence to corroborate her reasons for non-attendance at the Tribunal hearing in time or at all, the applicant had also not sought to engage further in the review process, including by the provision of further submissions. Accordingly, the Tribunal had decided to proceed to make a decision in the review on the evidence before it without allowing the applicant a further opportunity to appear.
The Tribunal set out the relevant legislation together with the PAM-3 policy guidelines issued by the Department in accordance with Ministerial Direction No 56 made under s 499 of the Act. The Tribunal accepted that the applicant was a national of Malaysia and assessed her claims against that country, as well as accepting her identity as claimed.
The applicant had claimed to fear harm in Malaysia from money lenders/debt collectors who were pursuing her after her boyfriend had listed her as the guarantor for a business loan provided by a private money lender. The applicant claimed that debt collectors had been sent to retrieve money from her after she had promised to pay but having provided her account and card details to them she then cancelled her accounts. The applicant claimed that when the debt collectors found her they were rough and aggressive, tortured her and that she was physically injured.
The applicant claimed that she had reported these incidents to police, but that they were not able to take action to secure her safety. The applicant claimed that there had been instances of murders at the hands of money lenders in Malaysia even when the authorities were involved, and that if she was spotted anywhere in Malaysia the money lenders/debt collectors would harm or kill her.
The Tribunal considered these claims to be vague and lacking in detail, and made reference to the requirement in s 5AAA of the Act which clearly places the onus on a protection visa applicant to provide sufficient particulars to establish their claims. In particular, the Tribunal highlighted specific details said to be lacking from the central part of the applicant’s claim. That claim to have been rendered as a guarantor for a loan given to her boyfriend lacked details as to how that situation was said to have come about, the amount allegedly owed, and any paperwork pertaining to it.
The Tribunal then set out the information upon which it would have liked the applicant to elaborate had she attended the Tribunal hearing (at [19] to [22]) and the material that it would have liked to have discussed with the applicant including country information regarding the responsiveness of police in Malaysia (at [21]) together with reports regarding how illegal money lenders were being dealt with.
Based on the evidence before it, the Tribunal was not satisfied that the applicant feared money lenders in Malaysia as a result of guaranteeing a loan procured by her former boyfriend, and did not accept that such a loan disputed would cause her to face threats from such money lenders if she was to return to Malaysia. The Tribunal found that the applicant did not have a well-founded fear of persecution on return to Malaysia nor that she met the complementary protection criterion, and accordingly it affirmed the decision of the delegate.
APPLICATION TO THIS COURT
By an application to show cause filed with this Court on 10 August 2017, the applicant seeks judicial review of the Tribunal’s decision under s 476 of the Migration Act and raises two grounds, the first of which is simply a statement that the applicant wishes to seek review.
The applicant appeared before me this afternoon via Microsoft Teams due to the ongoing COVID-19 hearing protocols, with the assistance of an interpreter in the Malay language. The Minister was represented by a solicitor. At the outset of the hearing I asked each of the interpreter and the applicant to confirm that they could understand each other, and they said that they could.
Early in the proceedings however, while still identifying documents and other administrative matters, the applicant asked me whether the interpreter was Indonesian or Malaysian. After we confirmed that the interpreter could interpret both languages, I asked the applicant whether she was having difficulty understanding the interpreter. She indicated that three or four words had been different, but that she was not having difficulty. I asked the applicant to let me know if at any other time during the hearing she had difficulty understanding the interpreter, and she did not further avail herself of that opportunity. Accordingly, I am satisfied that the applicant understood and was able to engage with the solicitor for the Minister and with me throughout the hearing.
Otherwise, there were no difficulties with the connection between the parties and the Court, although I note at an early stage of delivering these ex tempore reasons for judgment, I stopped and allowed the applicant to retrieve her young infant, who was crying, following which the matter continued.
The only substantive ground of review, being ground 2, alleges a constructive failure of jurisdiction and provides seven particulars to that ground. In essence, however, the ground of review takes issues with the Tribunal having proceeded to make a decision without allowing the applicant a further opportunity to appear before it. When asked to speak to this ground at hearing, the applicant made a number of submissions. She stated that she had approached a lawyer to get advice because that had been her first time at the Tribunal. The applicant said that she had explained to the lawyer that it was her first time, and that they said to her that the Tribunal should have given her feedback and a second interview. When I asked the applicant at what point she had consulted this lawyer, she said after she received the refusal email from the Tribunal. Accordingly, I do not understand the applicant to be suggesting that a lawyer in any way caused her non‑appearance or that the conduct of a lawyer is somehow intertwined with the Tribunal’s decision to proceed to make a decision without further allowing her an opportunity to appear before it.
The applicant made various submissions when asked why it was that she had not responded to the Tribunal’s request for evidence to verify why she had not been able to attend the hearing before it. However, certain important points emerged from those submissions. The applicant told me that she had read the Tribunal’s email of 31 July 2017 by which the Tribunal had requested evidence of the tow truck attending to pick up her vehicle and that that evidence be provided by close of business on 1 August 2017. The applicant told me that she asked her friend for the receipt in relation to the tow truck but her friend did not have it and so, therefore, she could give it to the Tribunal. When asked why it was that she had not explained that situation to the Tribunal, the applicant said she “did not know how to respond in English, that [she] had looked to use Google Translate, but it is not 100 per cent accurate”.
RELEVANT LEGISLATION
The following sections of the Act are relevant to the consideration of the instant case:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b) confirm the decision to dismiss the application, by written statement under section 430.
Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
441A Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
…
Transmission by fax, email or other electronic means
(5) Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e) if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.
In addition regulation 4.35D of the Migration Regulations 1994 (Cth) (Regulations) relevantly provides:
4.35D Prescribed periods—notice to appear before Tribunal
(1) For subsection 425A(3) of the Act, this regulation sets out the prescribed period of notice of the day on which, and the time and place at which, an applicant is scheduled to appear before the Tribunal in response to an invitation.
…
(3) If the invitation relates to any other application for review of a decision, the period of notice:
(a) commences when the person receives notice of the invitation to appear before the Tribunal; and
(b) ends at the end of:
(i) 14 days after the day the person receives notice of the invitation to appear before the Tribunal; or
(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
Note 1: If the Tribunal gives a person a document by a method specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method.
Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.
Section 422B of the Act has the effect that the provisions of Part 7, Division 4 constitute an exhaustive statement of natural justice. Those sections have the effect that where an applicant has been invited to appear before the Tribunal for the purposes of s 425 of the Act in the manner for which s 425A provides and fails to so appear, then s 426A permits the Tribunal to proceed to make a decision on the review without taking any action to allow or enable the applicant for review to appear before it.
The statutory power in s 426A of the Act is in the nature of a discretion which involves a decision by the Tribunal as to which course to take upon the non‑appearance of an applicant. It is well established that, as a statutory discretionary power, s 426A is to be construed as being subject to the presumption that the legislature intends that it be exercised reasonably: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [3] per Kiefel CJ and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63] per Hayne, Kiefel (as her Honour then was) and Bell JJ.
I am satisfied from the material in the Court Book, which I set out earlier, that the applicant was properly invited to a hearing by the Tribunal in accordance with the requirements of s 425 of the Act. I am also satisfied, having reviewed the hearing invitation at pages 76 to 77 of the Court Book, that the Tribunal’s letter:
(a)gave notice to the applicant of the day, time and place at which she was scheduled to appear, thereby complying with s 425A(1) of the Act;
(b)provided the applicant with requisite notice of the hearing, noting that the prescribed period is 14 days by reference to regulation 4.35D of the Regulations. The period of notice given to the applicant was 18 days by reference to the date on which she was deemed to have received the invitation, which was sent to her by email under s 441C(5) of the Act;
(c)was sent to the applicant’s nominated email address, being a permissible method of transmission pursuant to s 441A(5)(b) of the Act; and
(d)contained a statement to the effect of s 426A of the Act.
I am further satisfied that the applicant was aware of the hearing date given that she contacted the Tribunal twice on the date of the hearing to explain her reason for non-attendance.
Having complied with each of ss 425 and 425A of the Act, when the applicant failed to appear on 31 July 2017, the Tribunal was permitted by the statute to make a decision without taking any further action to enable or allow the applicant to appear before it.
The evidence before me indicates that as at 31 July 2017 the Tribunal was, in fact, open to exercising the discretion to allow the applicant a further opportunity. Instead of simply proceeding to a decision when the applicant failed to attend on that day, as it was entitled to do, it further engaged with the applicant to provide further explanation and evidence of her non-attendance. The Tribunal sought from the applicant evidence corroborating her explanation, namely something to verify the situation which she said had befallen her, namely a vehicle breakdown and subsequent towing which had prevented her from attending the Tribunal hearing.
When asked for such material, being evidence that a tow truck had attended, the applicant did not respond within the time provided by the Tribunal or at all. The Tribunal waited until the day after the deadline that it had set for the material to be provided before making a decision. While it did not specifically inform the applicant that it would proceed to a decision if she did not comply with that deadline, I note that there was no requirement of the Act that it do so and that, by setting its own deadline to which it adhered, it was reasonable for the Tribunal to proceed as it did.
The applicant conceded before me today that she had read the Tribunal’s email of 31 July 2017 and, further, that she had not responded to it. While I accept that English is not the applicant’s first language, it was incumbent upon her to engage with the Tribunal which she had managed to do adequately twice already on the day of the hearing, either by herself or with some assistance. It was on the basis that the applicant had not responded to its request for further information pertaining to her non-appearance that the Tribunal then exercised its discretion to proceed to make a decision without further allowing or enabling the applicant to appear.
By particular 6 to the ground of review and also by [5] of the applicant’s Affidavit in support of the originating application which I received as a submission at hearing, the applicant says that the Tribunal erred by failing to give her another hearing date. In this regard, the applicant did not expressly ask the Tribunal for an adjournment or for another hearing date, rather she stated that she could not come to the Tribunal that day. However, again noting that the applicant does not have English as her first language and that she is unrepresented, I am prepared to accept that it was implicit in her phone call to the Tribunal and her subsequent email that she wished to have the matter adjourned to an alternate date. I also note that the applicant had been somewhat proactive in contacting the Tribunal in advance of her hearing fixture even if only by 11 minutes before the start time.
The question for the Court is whether in all of these circumstances it was reasonable for the Tribunal to proceed to make a decision as it did. The Minister contends that it was within the bounds of decisional freedom for the Tribunal to so proceed and says that there was an evident and intelligible justification for the decision which took into account the applicant’s failure to respond to the Tribunal’s request for further evidence about her inability to attend the hearing: see Li (supra) at [29], [64] and [88] and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [62] per Allsop CJ, Griffiths and Wigney JJ.
I agree with the Minster’s submission and am of the view that the dismissal was a course that was plainly within the range of possible acceptable outcomes that are defensible in respect of the circumstances of this case: see EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [19]-[23] per Lee J, albeit that case was in the context of a s 426A(1)(b) dismissal, which attracts a reinstatement opportunity.
While the applicant did not have the opportunity of a reinstatement application by reason of the Tribunal proceeding pursuant to s 426A, she had been given the opportunity by the Tribunal to demonstrate the genuineness of the reason that she had provided for her non-attendance. The applicant did not do so, nor did she offer any explanation to the Tribunal why it was that she could not provide the evidence or otherwise engage with the Tribunal again.
Before me today the applicant said that her friend did not have the towing receipt, and that was why she could not provide it the Tribunal. However, that was an explanation which ought to have been given to the Tribunal at the relevant time.
There is nothing in the material before me which would lead me to conclude that the applicant was denied procedural fairness in the manner in which the Tribunal proceeded to dismiss her application consequent upon her failing to engage with it after her non-appearance at the hearing on 31 July 2017. The Tribunal having sought to further engage with the applicant, and her failure to respond in circumstances where she concedes that she read the email, further leads me to conclude that the Tribunal acted reasonably at that juncture to proceed to make a decision without further allowing or enabling the applicant to appear before it.
In terms of the substantive treatment of the applicant’s claims, which the Tribunal then went on to consider, the basis upon which the Tribunal made its decision is not either on the face of the grounds of review or the applicant’s submissions to me today sought to be challenged. There is nothing before me to suggest that the applicant takes issue with the reasoning of the Tribunal in relation to its assessment of her protection visa claims. In any event, having read the reasons for decision, I can see no jurisdictional error in that regard. The Tribunal identified obvious gaps in the evidence and the claims, which it described as vague and lacking in detail, and so it is unsurprising that the applicant’s failure to avail herself of the hearing opportunity gave rise to those gaps not being filled. Having regard to s 5AAA of the Act, to which the Tribunal also had regard, in my view the Tribunal’s findings in relation to its substantive decision were also open to it on the material before it.
In my view, the applicant has failed to demonstrate a jurisdictional error in the decision of the Tribunal as alleged in the application or at all. It is therefore a privative clause decision, and the application made on 10 August 2017 should be dismissed, and I will so order.
Consequent upon my dismissal of the application, the Minister sought costs fixed in the sum of $6,000. Aside from asking me whether or not it is possible to pay in instalments, to which I indicated that the applicant can discuss this with the Department, the applicant did not make any submissions in respect either of whether or not costs should follow the event or the amount sought.
I am satisfied that costs should follow the event in this case and that the amount sought is reasonable, having regard to the proceedings and the Court scale. I so order.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 25 February 2022
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