DTQ22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 627
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DTQ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 627
File number(s): MLG 2580 of 2022 Decision of: JUDICIAL REGISTRAR CUMMINGS Date of decision: 18 July 2023 Catchwords: MIGRATION – judicial review – application for summary dismissal of application for judicial review – where Tribunal dismissed review application after applicant failed to appear at hearing – where Tribunal confirmed dismissal decision after applicant failed to apply for reinstatement within prescribed period – whether Tribunal exercised its powers reasonably – whether Tribunal’s email correspondence was sent to “the last … email address … provided to the Tribunal by the [applicant] in connection with the review” – where applicant told the Court during the summary dismissal application that the Tribunal did nothing wrong and that his application for judicial review should be dismissed. Legislation: Migration Act 1958 (Cth), ss 425, 425A, 425A(1), 425A(2)(a) 425A(3), 425A(4), 426A(1A)(b), 426A(1B), 426A(1E), 426A(1F), 426B(2), 426B(5)(a), 426B(5)(b), 426B(6), 441A(5), 476(1)
Migration Regulations 1994 (Cth), reg 4.35D
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r 13.13(a)
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744, followed.
AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368, followed.
AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44, followed.
AYT16 v Minister for Immigration and Border Protection [2017] FCA 252, applied.
Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256, applied.
CZM17 v Minister for Immigration & Another [2018] FCCA 158, followed.
EWD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 832, considered.
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, applied.
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, applied.
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, applied.
Somjich v Minister for Home Affairs [2019] FCA 1921, applied.
SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789, applied.
SZTHQ v Minister for Immigration and Border Protection [2014] FCA 1231, applied.
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submissions: 5 July 2023 Date of hearing: 18 July 2023 Place: Adelaide Applicant: In person by telephone (the applicant declined to make use of the Thai interpreter arranged by the Court) Solicitor for the First Respondent: Mr A Slevison of the Australian Government Solicitor by Microsoft Teams ORDERS
MLG 2580 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DTQ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDICIAL REGISTRAR CUMMINGS
DATE OF ORDER:
18 JULY 2023
THE COURT ORDERS THAT:
1.The application for judicial review filed on 10 November 2022 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 (Cth).
2.The applicant pay the first respondent’s costs fixed in the amount of $3,200.
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 DECISION
JUDICIAL REGISTRAR CUMMINGS
On 10 November 2022, the applicant applied to this Court for judicial review of a decision made by the second respondent (the Tribunal) on 1 November 2022.
By his response filed on 19 January 2023, the first respondent (the Minister) contended that the applicant’s application should be summarily dismissed because it has no reasonable prospects of success.
I heard the summary dismissal application on 18 July 2023. At the conclusion of that hearing, I made orders providing for the judicial review application to be summarily dismissed with costs. These are the reasons why I was satisfied at the conclusion of the hearing on 18 July 2023 that the applicant had no reasonable prospects of successfully prosecuting his judicial review application such that his application should 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 (Cth) (the Rules).
BACKGROUND
On 1 February 2022, a delegate of the Minister refused to grant a protection visa to the applicant.
On 10 February 2022, the applicant applied to the Tribunal for review of the delegate’s decision. He provided a contact email address (the 730 address) and residential address in the application form, but no contact phone number. The applicant did not respond to a subsequent email from the Tribunal on 10 February 2022 requesting that he provide a contact phone number.
On 15 May 2022, the applicant emailed the Tribunal in relation to Medicare issues. The email was not sent from the 730 address; rather, it came from a different address (the 913 address). On 17 May 2022, the Tribunal sent an email to the 730 address that responded to the applicant’s request for information for Medicare purposes. On the same day, the Tribunal replied to the 15 May 2022 email from the 913 address as follows:
The letter requested below has been sent to your previously advised e-mail address. If you need to change your contact address details, and cannot access your old e-mail address, you should do so with a signed notice, such as the Change of Contact Details form (MR6) available from the AAT’s website.
The applicant did not file a Change of Contact Details form, nor did he otherwise respond to the email the Tribunal sent to the 913 address on 17 May 2022.
On 21 September 2022, the Tribunal invited the applicant to attend an in-person hearing on 14 October 2022. The invitation was emailed to the 730 address. The invitation relevantly stated the following:
What will happen if you don't appear
If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. Not appearing at the scheduled hearing means:
•if you were invited to appear at an AAT office (including by video from an AAT office), you do not attend the AAT office at the scheduled time;
…
A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
The email attaching the hearing invitation also attached a fact sheet that reiterated the potential consequences of the applicant failing to appear at the hearing.
The applicant did not attend the hearing on 14 October 2022. Later that day, the Tribunal dismissed the review application pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the Act) (the dismissal decision). The Tribunal’s decision record for the dismissal decision relevantly states the following:
The review applicant was invited under s 425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 14 October 2022 at 2:00pm AEDT. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5).
No satisfactory reason for the non-appearance has been given.
In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Tribunal notified the applicant of the dismissal decision by email sent to the 730 address on 17 October 2022. The cover letter accompanying the dismissal decision relevantly stated the following:
You may apply to us, in writing, for reinstatement of the application by 31 October 2022. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
The applicant did not apply for reinstatement of the review application by 31 October 2022. On 1 November 2022, the Tribunal exercised the power in s 426A(1E) by confirming the dismissal decision (the confirmation decision). The Tribunal’s decision record for the confirmation decision relevantly states the following:
As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
PROCEEDINGS IN THIS COURT
Summary dismissal of judicial review applications concerning migration decisions
As explained by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [46]; (2013) 249 CLR 332 at 357:
(1)The jurisdiction of the Federal Magistrates Court (now known as the Federal Circuit and Family Court of Australia (Division 2)) to review certain categories of decisions made under the Act (including the decisions of the Tribunal which are the subject of these proceedings) arises under s 476(1) of the Act;
(2)The jurisdiction conferred by s 476(1) is equivalent to the jurisdiction conferred on the High Court of Australia under s 75(v) of the Constitution; and
(3)The remedies provided by s 75(v) are available only for jurisdictional error.
The Minister’s application for summary dismissal invokes r 13.13(a) of the Rules, which provides that the Court may order that a proceeding be dismissed if the Court is satisfied that “the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim”.
The combined effect of the abovementioned provisions is that the question for this Court in determining the application for summary dismissal is whether the Court is satisfied that the applicant has no reasonable prospects of establishing that the Tribunal’s decisions (or either of them) are affected by jurisdictional error.
It is not my function to conclusively determine whether the Tribunal’s decisions (or either of them) are affected by jurisdictional error. I am instead concerned with whether the application for judicial review raises a “real or genuine dispute as to any material fact that might reasonably be resolved in the applicant’s favour after drawing all reasonable inferences in favour of [the applicant]” (AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] per Judge Given). Summarily dismissing the application for judicial review would also be inappropriate if, based on the available materials, there appears to be a “real question of law” that should be decided at trial (Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46]; (2013) 220 FCR 256 at 271 per Reeves J).
It is for the Minister, as the moving party in respect of the application for summary dismissal, to satisfy me that the applicant has no reasonable prospects of successfully prosecuting the application for judicial review at a final hearing (AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 at [37] per Deputy Chief Judge Mercuri).
Hearing of the Minister’s summary dismissal application
Documents
The applicant has applied for judicial review of the confirmation decision but not the dismissal decision. The grounds contained in the application are as follows:
Hearing of the Minister’s summary dismissal application
Documents
The matter came before me for hearing of the Minister’s summary dismissal application on 18 July 2023. These were the documents the parties asked me to read in determining that application:
(1)The applicant’s application for judicial review filed on 10 November 2022;
(2)The applicant’s affidavit filed on 10 November 2022 (which annexed the confirmation decision);
(3)The Minister’s response filed on 19 January 2023, which contains the summary dismissal application that is the subject of these reasons;
(4)The court book filed by the Minister on 8 March 2023;
(5)The Minister’s submissions filed on 5 July 2023; and
(6)The affidavit of Adam James Slevison filed on behalf of the Minister on 5 July 2023.
I admitted the documents referred to above at (2), (4) and (6) into evidence at the hearing of the summary dismissal application.
Oral submissions
Noting that the applicant was unrepresented, I gave him an explanation as to the nature of the Court’s role in undertaking judicial review and the common categories of jurisdictional error. I also explained that I had no power to grant the applicant a visa, or to engage in a merits review of the Tribunal’s decision.
In circumstances where the Minister was the moving party in respect of the summary dismissal application, I invited his solicitor to make submissions as to why I should be satisfied that the applicant’s substantive application has no reasonable prospects of success. The Minister’s oral submissions were to the same effect as those made in his written submissions. In short, the Minister contended that it was open to the Tribunal to decide to dismiss the applicant’s review application after they failed to appear at the hearing, and the applicant’s subsequent failure to apply for reinstatement of the review application meant that the Tribunal was obliged by law to confirm the dismissal decision. The Minister’s lawyer also made submissions in relation to the applicability of the judgment of Rangiah J in Somjich v Minister for Home Affairs [2019] FCA 1921.
I then invited the applicant to make oral submissions as to what he believes the Tribunal did wrong in his case. The applicant said to me that “nothing is wrong” in the Tribunal’s decision and he accepted that his application for judicial review should therefore be dismissed. When I inquired with the applicant whether he wished the Court to make orders dismissing his application for judicial review by consent, he said he did not want that to happen because he wanted the option of applying for review in the event the Minister’s summary dismissal application was upheld.
In reply Mr Slevison suggested that these proceedings may be an abuse of process in circumstances where the applicant had indicated that he would continue to prosecute his application for judicial review despite admitting that it had no prospects of success. I indicated that any abuse of process concerns could be raised by the Minister in the event I summarily dismissed the application for judicial review and the applicant then sought review of those orders.
Consideration
The grounds in the applicant’s application do not clearly explain the nature of the jurisdictional errors that the applicant alleges were committed by the Tribunal. The grounds also contain statements that do not relate to this matter. For example, in ground 4, it is asserted that the applicant attended a hearing in the Tribunal, but that is not the case, nor did the applicant provide “three folders of further documents in support of the review” to the Tribunal as is also asserted in that ground. The evidence before the Court confirms that neither of those assertions is correct, and the applicant made no attempt to contend that the assertions were correct in the hearing before me. He instead admitted that there was nothing wrong in the Tribunal’s decisions, both of which proceeded on the basis that the applicant had failed to attend the hearing to which he had been invited and had not otherwise engaged in the review process. The existence of those erroneous factual assertions in the applicant’s grounds must be seen in the context of the same grounds appearing (with only slight variations) in hundreds of other matters that are either pending in this Court or have recently been determined. However, as noted by Judge Vasta in EWD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 832 at [36], “the duty of the Court is to ignore [the template nature of the applicant’s grounds] and adjudicate the matter on the merits”. The applicant’s oral submissions also did not contain any allegation of error on behalf of the Tribunal at all, let alone a reasonable arguable allegation of jurisdictional error. In those circumstances, I engaged in an independent assessment of the evidence before me with a view to establishing whether it is arguable that the confirmation decision was vitiated by jurisdictional error. It is convenient to frame my analysis by reference to these questions:
(1)Did the Tribunal have power to make the dismissal decision?
(2)Did the Tribunal act reasonably in making the dismissal decision?
(3)Did the Tribunal have power to make the confirmation decision?
(4)Did the Tribunal act reasonably in making the confirmation decision?
(5)Did the Tribunal email the relevant correspondence to the correct email address?
Did the Tribunal have power to make the dismissal decision?
Section 426A(1)-(1A) of the Act provide as follows:
(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.
The dismissal power in s 426A(1A)(b) is conditioned upon the relevant applicant having been validly invited under s 425 to appear before the Tribunal (ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744 at [50] per Judge Kendall). For the reasons that follow, I am satisfied that the hearing invitation extended to the applicant in the matter at hand complied with the requirements imposed by ss 425 and s 425A of the Act:
(1)The invitation indicated the date, time and means by which the applicant could attend the hearing, as is required by s 425A(1).
(2)The invitation was addressed to the applicant and was conveyed to the applicant by email to the contact email address provided in the Tribunal review application, email being an approved communication method for the purposes of ss 425A(2)(a) and 441A(5) (I return to this issue later in these reasons).
(3)The invitation was given to the applicant on 21 September 2022, which constituted a notice period for the hearing that exceeded the minimum prescribed by s 425A(3) and reg 4.35D of the Migration Regulations 1994 (Cth).
(4)The invitation contained a statement explaining what would happen if the applicant did not attend the hearing, as is required by s 425A(4) of the Act.
In light of the foregoing, I was satisfied at the conclusion of the summary dismissal hearing that the dismissal power in s 426A(1A)(b) was enlivened in the matter at hand by reason of the applicant’s failure to appear at the Tribunal hearing. I was also satisfied that the applicant did not have reasonable prospects of successfully establishing the contrary position at a final hearing of his application.
Did the Tribunal act reasonably in making the dismissal decision?
The dismissal power in s 426A(1A)(b) must be exercised reasonably (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4]; (2018) 264 CLR 541 at 549). I am satisfied that the exercise of the power in the matter at hand was reasonable, and that the applicant does not have reasonable prospects of successfully establishing the contrary position at a final hearing of his application. I am of that view because the reasons the Tribunal gave as to why it exercised the power in the way that it did comprise an intelligible justification for the exercise of the power (Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [58]); (2014) 231 FCR 437 at 446-447). The gist of those reasons was that, despite being validly invited to the hearing, and informed of the consequences of not attending at same, the applicant did not appear at the hearing and no satisfactory reason for the non-appearance had been provided.
The following matters militate against a conclusion that the applicant has reasonable prospects of successfully arguing that the Tribunal’s decision to proceed under s 426A(1A)(b) was legally unreasonable:
(1)There is no “free-standing obligation on the Tribunal in every case in which there has been a failure to respond to a hearing invitation or a failure to appear at a scheduled hearing to search its records to seek to find another way of communicating with the applicant, or to adjourn the hearing” prior to exercising the s 426A(1A)(b) dismissal power. (SZTHQ v Minister for Immigration and Border Protection [2014] FCA 1231 at [41] per Murphy J).
(2)The Tribunal is also not obliged to invite the applicant to comment on whether the Tribunal should proceed under s 426A prior to the Tribunal so deciding (SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789 at [35] per Middleton J).
(3)Contrary to a point the applicant appears to have been attempting to make in some of his grounds (see, for example, grounds 3- 5), the Tribunal was not obliged to evaluate the strength of the applicant’s protection claims in determining how to exercise the dismissal power in s 426A(1A)(b) (CZM17 v Minister for Immigration & Another [2018] FCCA 1587 at [25] per Judge Driver).
Did the Tribunal have power to make the confirmation decision?
Sections 426A(1B) and 426A(1E) provide as follows:
(1B) If the Tribunal dismisses the application [pursuant to s 426A(1A)(b)], 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.
…
(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.
I am satisfied that the applicant was notified of the dismissal decision for the purposes of s 426B on the date the decision was emailed to him, namely, 17 October 2022. On that day, the applicant was given a written statement of decision that complied with the requirements of s 426B(2). That statement was conveyed to the applicant through email, a method specified in s 441A, as required by s 426B(5)(b). The statement was provided to the applicant within the 14-day period referred to in s 426B(5)(a). The applicant was also given a statement describing the effect of ss 426A(1B) to (1F), as required by s 426B(6).
The 14-day period referred to in s 426A(1B) therefore expired on 31 October 2022. It follows from the mandatory terms of s 426A(1E) that the decision the Tribunal made on the following day, namely, the confirmation decision, was the only decision the Tribunal could validly make in light of the applicant’s failure to apply in writing for reinstatement of the review application (AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10] per Perram J).
Did the Tribunal act reasonably in making the confirmation decision?
The fact that the Tribunal was “obliged by law” (AYT16 at [10] per Perram J) to make the confirmation decision necessarily means that the Tribunal’s decision to proceed in that way was not legally unreasonable. Even if it was the case that the applicant’s failure to appear at the Tribunal hearing was beyond his control, as appears to be alleged by ground 4, the Tribunal had no power to do anything other than confirm the dismissal decision given the applicant’s failure to make a written reinstatement application within the 14-day period. I note for completeness that there is no evidence that the applicant ever told the Tribunal that his failure to attend the hearing was caused by events or circumstances that were outside his control, nor was there anything before the Tribunal that ought to have put it on inquiry in relation to that issue.
Did the Tribunal email the relevant correspondence to the correct email address?
Section 425A(3) required the Tribunal to give the hearing invitation to the applicant by one of the methods specified in s 441A, and s 426B(5)(b) required the Tribunal to notify the applicant of the dismissal decision by one of the methods specified in s 441A. Section 441A(1) and (5) relevantly provide:
(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.
…
(5) Another method consists of a member or an officer of the Tribunal transmitting the document by:
…
(b) email; …
to:
(d) the last … email address … provided to the Tribunal by the recipient in connection with the review; …
I have considered whether the email address to which those two documents were sent to the applicant (the 730 address) was the “the last … email address … provided to the Tribunal by the recipient in connection with the review” in circumstances where the final (and only) email the applicant sent the Tribunal during the review was the request for Medicare information which was sent from the 913 address. The email from the 913 address stated the following:
Subject: Letter for renewing Medicare card
Dear sir/madam
I would like to renew my interim Medicare card can you please provide a confirmation letter from AAT so I can send to Medicare? Thank you
My full name is [applicant’s name]
My day of birth [applicant’s birth date]. My visa class review is protection visa 866
My phone number is [phone number]
Thank you very much.
Yours sincerely,
[Applicant’s name]
At the conclusion of the summary dismissal hearing, I found myself to be satisfied that the applicant did not have reasonable prospects of successfully prosecuting his application for judicial review by arguing that s 441A(5) obliged the Tribunal to send the relevant documents to the 913 address as opposed to the 730 address. I consider that this Court is bound to reach that conclusion by reason of the judgment of Rangiah J in Somjich v Minister for Home Affairs [2019] FCA 1921. In that judgment, his Honour relevantly stated the following at [57]-[59] in relation to s 379A(5) of the Act, which is relevantly indistinguishable from s 441A(5) (emphasis added):
… The purpose of s 379A(5) is both to place an onus the applicant to keep the Tribunal notified of his or her address for the receipt of documents and to allow the Tribunal to comply with its obligation to provide documents by sending them to the address provided. In this context, the expression “provided to the Tribunal...in connection with the review” is not satisfied merely by an applicant providing an email address that has some tenuous, unclear and uncertain relationship with the review. The provision requires that applicant make it sufficiently clear to the Tribunal that the email address provided is the email address that is to be used for the provision of documents.
While the appellant sent several emails to the Tribunal from the Hotmail address, those emails did not give any clear indication that the Hotmail address, and not the Gmail address, was to be the address to which documents were to be sent. To the contrary, on 1 May 2018, the appellant provided the Tribunal with a form indicating that there was to be no change to his contact details in circumstances where his application form had given the Gmail address as his address for correspondence. The statement in that form that he wished documents to be sent to him and not his former agent did not assist in circumstances where he had not made it apparent that the Gmail address was that of the agent.
In SZBHU v Minister for Immigration and Citizenship [2007] FCA 1614, Gilmour J observed at [49] that the Pt 7 provision equivalent to s 379A does not identify any particular method by which an applicant may provide an address for service to the Tribunal. Section 379A(5) does not require any particular degree of formality in the provision of the relevant email address. It is not essential, for example, that a “Change of Contact Details—MR Division” form (which is not a prescribed form) be completed in order to provide a new email address. However, the mere sending of emails from the Hotmail address gave no indication that the Hotmail address was the address to be used for the provision of documents instead of the Gmail address. The Hotmail address was not, in my opinion, “provided to the Tribunal in connection with the review”.
There is nothing in the sole email the applicant sent from the 913 address that made it “sufficiently clear” that the 913 address was to be used by the Tribunal for the provision of documents. Although, as was held in Somjich, the applicant’s failure to provide a complete Change of Contact Details form is not determinative of the issue, I consider that the Tribunal was entitled to proceed on the basis that the applicant wished to continue to receive correspondence via the 730 address in circumstances where there is no request in the email from the 913 address that all correspondence for the purposes of the review be sent by the Tribunal to the 913 address instead of the 730 address. It is also relevant that the applicant did not respond to the email the Tribunal sent to the 913 address that specifically concerned the issue of whether the applicant wished to change his contact email address.
CONCLUSION
It was in light of all the foregoing matters that I found myself satisfied at the conclusion of the summary dismissal hearing that the applicant did not have reasonable prospects of successfully prosecuting his application. I was satisfied that there are no real issues of fact or law that could reasonably be decided in the applicant’s favour were the matter to proceed to a final hearing. In those circumstances, I decided that it was appropriate for the application to be summarily dismissed pursuant to r 13.13(a) of the Rules. I ordered accordingly.
The Minister sought an order requiring the applicant to pay the Minister’s costs fixed in the amount of $3,200. I was satisfied that costs should follow the event. The amount sought by the Minister is less than that provided for the Court’s scale as set out in Division 1 of Part 2 of Schedule 2 of the Rules, and I therefore considered that the claimed amount was appropriate. I ordered accordingly.
41 I certify that the preceding 40 (forty) numbered paragraphs are a true copy of the Reasons for Decision of Judicial Registrar Cummings.
Legal Case Manager: AN
Dated: 18 July 2023
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