DUL17 v Minister for Immigration
[2017] FCCA 2878
•23 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUL17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2878 |
| Catchwords: MIGRATION – Judicial review – protection visa – decision of Administrative Appeals Tribunal – where no appearance by applicant before the Administrative Appeals Tribunal – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 425, 425A, 426A, 426B, 441A, 474, 476 Migration Regulations 1994 (Cth), r.4.35D |
| Cases cited: AJY16 v Minister for Immigration & Anor [2017] FCCA 565 WZATH v Minister for Immigration & Border Protection [2014] FCA 969 WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 |
| Applicant: | DUL17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 455 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 17 November 2017 |
| Date of Last Submission: | 17 November 2017 |
| Delivered at: | Perth |
| Delivered on: | 23 November 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms A Ladhams |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 455 of 2017
| DUL17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 23 August 2017 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) in relation to the refusal to grant him a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”).
Relevant documents were tendered in a Court Book (“CB”), which was marked as Exhibit 1.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a Malaysian citizen identifying as of Chinese ethnicity and Buddhist religious beliefs, arrived in Australia on a valid ETA visa on 18 January 2010: CB 3-37;
b)the applicant remained in Australia unlawfully until applying for the Protection Visa on 8 October 2015 making the following claims in support:
i)the applicant was a member of the People’s Justice Party (“PKR”), commonly referred to as the PKR, and had successfully organised election companies to support the Democratic Action Party (“DAP”). The ruling party of Malaysia attempted to recruit and employ the applicant many times but he continually refused and they hired gang members who threatened to kill him if he didn’t resign from DAP or join their party: CB 32 and 49;
ii)the gang members hit him and told him he was an avaricious person, when he tried to say he was not they repeated this taunt. The applicant was also hit with furniture until he lost consciousness, had more than 10 cigarettes placed in his mouth and was in extreme pain: CB 33 and 49;
iii)when reporting the incident to his boss the applicant was told the DAP could not protect him from these people: CB 32 and 49;
iv)after the first incident the applicant made a report to the police who asked he provide more evidence than the bloodstains on his body and when asking what more was required he was not given an answer and just told the current evidence was not enough: CB 33 and 49;
v)the gang member ‘arrested’ the applicant because the police officer told them of his report and he was locked in a black room and tortured for three days before being warned not to do any more ‘stupid action’ and decide in 20 days if he would join the group or not: CB 33 and 49;
vi)the applicant moved to another part of Malaysia but he was traced to this new place: CB 33 and 49;
vii)the gang members have tried to locate him since his departure and visited his parents and threatened them before burning their house as his parents said he was no longer in Malaysia. The applicants parents passed on a message from these gang members that if he returned they will find him and kill him and he fears if he returns they will act upon this threat: CB 32 and 49; and
viii)the gang members work for the authorities, the airport officer will inform them of his arrival and they can trace him anywhere in Malaysia so he has nowhere to go: CB 34 and 49;
c)on 17 May 2016 a delegate (“Delegate”) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) refused to grant the applicant a Protection Visa (“Delegate’s Decision”) and on 6 June 2016 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 44 and 59-60;
d)on 1 May 2017 the applicant was sent via email to the address provided in his Protection Visa application form, an invitation to attend a Tribunal hearing on 20 June 2017: CB 78;
e)on 7 June 2017 the applicant was advised that the 20 June 2017 Tribunal hearing was cancelled due to unforeseeable circumstances and would be rescheduled at a later date: CB 89, and on 5 July 2017 the applicant was informed via email of a new Tribunal hearing date on 27 July 2017: CB 97;
f)the applicant failed to appear at the scheduled time on 27 July 2017, and the Tribunal attempted to contact the applicant on the mobile number provided on the Protection Visa application, however this was noted as being disconnected: CB 99-101;
g)on 28 July 2017 the applicant was notified that his application had been dismissed pursuant to s.426A(1A)(b) of the Migration Act as he had failed to appear or provide a satisfactory reason for his non-appearance at the Tribunal hearing. Within this notification the applicant was provided with Information Form MR20- Information about dismissal of applications- MR Division advising him of his right to seek re-instatement of the Protection Visa application within 14 days: CB 103-108;
h)the applicant failed to apply for reinstatement in the 14 day period and on 14 August 2017 the Tribunal confirmed the dismissal of the Protection Visa application under s.426A(1A)(b) of the Migration Act: CB 109-113; and
i)on 23 August 2017 the applicant made the Judicial Review Application.
Tribunal Decisions
There are two decisions of the Tribunal in this matter.
The Tribunal Decision of 27 July 2017 (“First Tribunal Decision”) at CB 108 is as follows:
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 27 July 2017 at 3:30pm. 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.
2. 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) of the Act and the invitation has not been returned to sender. When the review applicant did not appear before the Tribunal on the day and at the scheduled time and place, a call was placed to the applicant on his nominated telephone number. This call received a recorded message indicating that the number had been disconnected. No satisfactory reason for the non-appearance has been given.
3. 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 Decision of 11 August 2017 (“Second Tribunal Decision”) at CB 114 is as follows:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 May 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2. On 27 July 2017 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4. 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.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
Judicial Review Application
The Judicial Review Application seeks an order quashing the First Tribunal Decision on the following grounds:
1. There exists jurisdictional error.
The tribunal wrongly applies law. A ‘real chance’ is a substantial chance and it may be below a 50 per cent chance.
The Tribunal does not properly consider my situation that there is a real risk for me to suffer significant harm if I return to Malaysia.
2. The tribunal treats my case unfairly.
(Copied verbatim from the Judicial Review Application).
The affidavit (“Applicant’s Affidavit”) accompanying the Judicial Review Application said as follows:
1. I will been force to pay for protection fee
2. I will been threatened and beaten by mafia
3. I will been killed by the mafia
(Copied verbatim from the Judicial Review Application).
Pursuant to an order of a Registrar of the Court dated 7 September 2017 the applicant was provided an opportunity to lodge an amended Judicial Review Application, further supporting affidavits and an outline of submissions, but he did not do so.
At hearing the applicant made oral submissions:
a)in which he initially said that he received no notification of the Tribunal hearing, but – and very soon thereafter – said that a friend to whom he spoke told him not to do anything with respect to the Tribunal hearing; and
b)in which he also said that he cannot return to Malaysia, and he wishes to stay in Australia.
The Minister filed written submissions and made oral submissions at hearing that the Judicial Review Application ought to be dismissed with costs because:
a)the grounds, read with the Applicant’s Affidavit, suggest the applicant is seeking impermissible merits review and appear to have been prepared without any regard to the actual reasons for the First Tribunal Decision or the Second Tribunal Decision;
b)neither of the grounds are particularised and failure to particularise grounds alone is sufficient to warrant the dismissal of the Judicial Review Application: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (“WZAVW”); WZATH v Minister for Immigration & Border Protection [2014] FCA 969 (“WZATH”); AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard (“AQN15”);
c)ground one comprises a bald assertion of jurisdictional error without any particulars identifying the error, and there is nothing to suggest that either the First Tribunal Decision or the Second Tribunal Decision are vitiated by jurisdictional error; and
d)the decisions made by the Tribunal in the First Tribunal Decision and the Second Tribunal Decision were open to the Tribunal under s.426A of the Migration Act. Accordingly, the Tribunal was not required to consider the merits of the applicant’s claims for protection and to apply the ‘real chance’ test, nor to consider whether the applicant would suffer significant harm if he was returned to Malaysia.
Consideration
Jurisdictional error required
The Tribunal Decision may only be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. Such an error will only constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the appropriate statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”); Craig v South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; CLR at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
This Court does not have the jurisdiction to review the merits of a Tribunal decision, or determine an applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J (“Quin”).
Dismissal for non-appearance
In relation to the Tribunal’s processes for inviting the applicant to the Tribunal hearing on 27 July 2017 the Court observes as follows:
a)by letter dated 5 July 2017 (“Invitation Letter”) the Tribunal invited the applicant to attend the Tribunal hearing scheduled on 27 July 2017;
b)the Invitation Letter complied with the requirements of ss.425 and 425A of the Migration Act;
c)the Invitation Letter was given to the applicant, as required by s.425A(2)(a) of the Migration Act, by one of the methods specified in s.441A of the Migration Act, namely transmission by email in accordance with s.441A(5) of the Migration Act;
d)the Invitation Letter was sent to the applicant’s email address which was the address provided to the Tribunal by the applicant in connection with the review;
e)the Invitation Letter satisfies the requirements of s.425A(3) of the Migration Act by giving more than the prescribed period of 14 days’ notice required by reg.4.35D(3) of the Migration Regulations 1994; and
f)the Tribunal attempted to call the applicant’s mobile number when he did not appear.
Following the Tribunal hearing on 27 July 2017, the Tribunal complied with its obligations under s.426B(2) of the Migration Act, namely:
a)making a written statement of its decision and reasons for decision (that is, the First Tribunal Decision) and giving a copy to the applicant as required by s.426B(5) of the Migration Act;
b)pursuant to s.426B(5)(a) of the Migration Act, the written statement (that is, the First Tribunal Decision) under s.426B(2) of the Migration Act was given to the applicant within 14 days after the day on which the decision to dismiss was made, specifically on 28 July 2017;
c)as required by s.426B(5)(b) of the Migration Act, the First Tribunal Decision was given to the applicant by one of the methods specified in s.441A of the Migration Act, namely, transmission by email, in accordance with s.441A(5) of the Migration Act, to the applicant’s email address;
d)by reason of s.441C(5) of the Migration Act the applicant is taken to have received the First Tribunal Decision at the end of the day on which the document was transmitted, that is 28 July 2017;
e)the Tribunal correctly advised the applicant that he could apply to the Tribunal, in writing, for reinstatement of the Protection Visa application by 11 August 2017 (14 days after receiving the First Tribunal Decision); and
f)the applicant was given a leaflet titled ‘Information about dismissal of applications – MR Division’ which contained a statement describing the effect of s.426A(1B)-(1F) of the Migration Act, as required by s.426B(6) of the Migration Act.
The Court further observes that:
a)the applicant was validly invited to attend the Tribunal hearing under s.425 of the Migration Act and failed to appear, and it was thus open to the Tribunal to exercise its discretion under s.426A(1A)(b) of the Migration Act to dismiss the application without any further consideration of the application or information before it: Singh & Anor v Minister for Immigration & Anor [2016] FCCA 2888 at [34] per Judge Jones (“Singh”); Sharma & Anor v Minister for Immigration & Anor [2017] FCCA 966 at [25] per Judge Driver (“Sharma”); and
b)the Tribunal complied with its statutory obligations under s.426B of the Migration Act and the applicant failed to apply for reinstatement of the Protection Visa application. The Tribunal was therefore obliged, under s.426A(1E) of the Migration Act, to confirm the First Tribunal Decision: Nidanakavi v Minister for Immigration & Anor [2017] FCCA 873 at [16] per Judge Hartnett; Singh at [22] and [35] per Judge Jones ; CJU16 v Minister for Immigration & Anor [2017] FCCA 741 at [10] and [13] per Judge Vasta (“CJU16”), affirmed on appeal in CJU16 v Minister for Immigration & Border Protection [2017] FCA 1040 (“CJU16 Appeal”); Sharma at [21] per Judge Driver.
The applicant’s briefly stated assertion that he did not receive notice of the Tribunal hearing cannot be accepted. Firstly, it was briefly stated and soon contradicted: see [10(a)] above. Further, in circumstances where valid notification of the Tribunal hearing has been sent to an email address provided by the applicant to the Tribunal, that notice is deemed to have been received by the applicant: Migration Act, s.441A; WZAOC v Minister for Immigration [2011] FCA 163 at [10]-[11] per North J (from which an application for special leave by the applicant was refused: WZAOC v Minister for Immigration & Citizenship [2011] HCASL 115); CJU16 at [13]-[18] per Judge Vasta; CJU16 Appeal at [6] and [11]-[12] per Logan J.
The Court notes that the applicant has not sought review of the Second Tribunal Decision.
The Migration Act states the Tribunal ‘may’ make a decision, therefore the Tribunal is exercising its own discretion when making this decision: Migration Act s.426A. The principles to determine if the discretion to proceed with the hearing and dismiss the application for non-appearance was unreasonable are individual to the factual circumstances of each case. In circumstances where the Tribunal should be alert to the applicant’s non-appearance as being out of character or amiss, a decision to dismiss in accordance with s.426A of the Migration Act has been held unreasonable: Minister for Immigration & Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73. Where the Tribunal has failed to make any attempts to further contact the applicant on the day of the hearing it has been held the exercise of the discretion to dismiss the case was unreasonable: Kaur v Minister for Immigration & Border Protection [2014] FCA 915; (2014) 236 FCR 393.
There is nothing before the Court to suggest the applicant’s past behaviour and engagement with the Tribunal warranted the Tribunal adjourning the proceedings as opposed to dismissing the Protection Visa application claim. In light of this the Court does not consider the Tribunal has acted unreasonably in dismissing the Protection Visa application, particularly as there was no evidence to indicate if the matter were to be adjourned the applicant would attend any further Tribunal hearing: MZALO v Minister for Immigration & Border Protection [2016] FCA 1339 at [22]-[28] per Mortimer J. Further, the Tribunal made an attempt to call the applicant on the mobile phone number in the applicant’s file during the hearing, only to find it was not connected: AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383; (2015) 244 FCR 144; (2015) 68 AAR 71. Finally, the applicant was afforded the opportunity to respond to the First Tribunal Decision to dismiss and seek it be set aside and made no attempt to do such. The Court is satisfied the Tribunal has not acted unreasonably.
Having dismissed the Protection Visa application pursuant to s.426A(1A)(b) of the Migration Act, the failure of the applicant to respond within 14 days to notice of this decision bound the Tribunal to affirm the decision to dismiss the proceedings: Migration Act s.426A(1E).
The First Tribunal Decision to dismiss the Protection Visa application on the basis of the applicant failing to appear at the Tribunal hearing was one which the Tribunal ‘could’ make, and the applicant’s failure to apply for reinstatement of the Protection Visa application within the 14 days allowed meant that the Second Tribunal Decision was a decision which ‘should’ have been, and was mandatorily made: CJU16 at [20] per Judge Vasta.
The Court can find no jurisdictional error in the exercise of the Tribunal’s discretion pursuant to s.426A of the Migration Act.
In circumstances where the First Tribunal Decision and Second Tribunal Decision were decisions open to the Tribunal for the reasons set out above, and in respect of which there is no jurisdictional error for the reasons set out above, and where the applicant’s grounds of the Judicial Review Application and the contents of the Applicant’s Affidavit do not engage with the actual reasons for the First Tribunal Decision and Second Tribunal Decision, those grounds are legally irrelevant and cannot succeed, and it is strictly unnecessary for the Court to consider them: CJU16 Appeal at [12] per Logan J; Singh at [34]-[36] per Judge Jones; Sharma at [25]-[26] per Judge Driver.
Even if the Court were to consider the grounds of the Judicial Review Application they would be dismissed, because, in general terms:
a)they are largely unparticularised, and therefore might be dismissed on that basis alone: WZAVW at [35] per Gilmour J; WZATH; AQN15 at [33]-[35] per Judge Howard;
b)the issue of the application of the real chance test by the Tribunal, and assessment of whether or not there was a real risk of significant harm, did not arise in circumstances where the applicant did not attend the Tribunal hearing;
c)there is no evidence which supports the assertion that the Tribunal was biased, either on a real or apprehended basis: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421;(2001) 65 ALD 1 at [35] and [72] per Gleeson CJ and Gummow J; Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ;
d)there is no unfairness in an SZBEL sense in either the First Tribunal Decision or the Second Tribunal Decision: SZBEL; and
e)otherwise, the grounds appear to invite impermissible merits review contrary to principles long established in decisions such as Quin and Wu Shan Liang.
Conclusion and orders
The Court has concluded that neither the First Tribunal Decision nor the Second Tribunal Decision is vitiated by jurisdictional error, and in those circumstances there will be an order that the Judicial Review Application be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 23 November 2017
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