DWW17 v Minister for Immigration
[2017] FCCA 3209
•19 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DWW17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3209 |
| 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.425, 425A, 426A, 441A, 474, 476 Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: Alraheb v Minister for Immigration & Citizenship [2009] FMCA 1284 |
| Applicant: | DWW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 468 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 15 December 2017 |
| Date of Last Submission: | 15 December 2017 |
| Delivered at: | Perth |
| Delivered on: | 19 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms E Tattersall |
| Counsel for the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 468 of 2017
| DWW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal”). The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the applicant a protection (Class XA) visa (“Protection Visa”).
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a Malaysian citizen, arrived in Australia on 14 April 2015 and on 18 November 2015 applied for a Protection Visa: CB 41;
b)the following claims were made in support of the Protection Visa application:
i)the applicant is of Chinese ethnicity and the Malay people do not like Chinese people to stay in Malaysia: CB 30;
ii)he has been bullied and beaten many times because of his Chinese ethnicity, and was threatened with a weapon to stop working for his boss, and has been injured by having a stone thrown at him while driving a motorcycle: CB 30-31;
iii)if he returns to Malaysia he will continuously be bullied and beaten while having to live without freedom and happiness: CB 30;
iv)he never sought help because Malay people will never go against their religion and he cannot move because Malaysia is an Islamic country, while other Chinese Malays are too scared to assist him, so he will not be safe: CB 31; and
v)he sought help from the police and other government departments about the issue, but they said it was a small case and did not take any action: CB 31;
c)on 25 May 2016 the delegate refused to grant the applicant a Protection Visa: CB 37;
d)on 7 June 2016 the applicant lodged an application for review with the Tribunal;
e)on 14 July 2017 the applicant was invited to attend a hearing before the Tribunal on 8 August 2017: CB 55; and
f)on 8 August 2017 the applicant failed to appear at the Tribunal hearing and the Tribunal dismissed his review application: CB 67 (“First Tribunal Decision”).
Tribunal Decision
The Tribunal notified the applicant of the First Tribunal Decision on 8 August 2017: CB 65, and advised him that if he wished to apply for reinstatement of his application to the Tribunal he must do so by 22 August 2017. The First Tribunal Decision also noted that:
a)the Tribunal hearing invitation advised the applicant that a non-appearance may result in the application being dismissed without any consideration of the information before the Tribunal: CB 67 at [1];
b)two SMS reminders of the date of the Tribunal hearing had been sent to the applicant’s nominated telephone: CB 67 at [1]-[2];
c)an attempt to contact the applicant on his nominated telephone number was made by the Tribunal at the time of the Tribunal hearing, and the call was not answered: CB 67 at [2]; and
d)the Tribunal had received no reason or explanation for the applicant’s non-appearance: CB 67 at [2].
Attached to the First Tribunal Decision was an Information Sheet titled “Information about dismissal of applications- MR Division.” This information sheet provided the applicant with the necessary information regarding his rights in relation to the dismissal for non-appearance by the Tribunal, and in particular, stated the applicant must apply for a reinstatement of the application within the 14 day period: CB 68-69.
The applicant did not apply for a reinstatement of his application to the Tribunal and on 23 August 2017 the applicant was notified of a further decision by the Tribunal confirming the First Tribunal Decision (“Second Tribunal Decision”). The Second Tribunal Decision read as follows:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 May 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2. On 8 August 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.
[Copied verbatim from the Second Tribunal Decision at CB 73].
Judicial Review Application
On 30 August 2017 the applicant lodged the Judicial Review Application. The Judicial Review Application was incomplete, and three pages, including those with sections where the orders sought and the grounds of review are to be inserted were not included in the Judicial Review Application.
The applicant also filed an accompanying affidavit sworn on 30 August 2017 (“Applicant’s Affidavit”) in support of the Judicial Review Application in which he stated:
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
On 27 September 2017 a Registrar of this Court made an order providing the applicant with an opportunity to file any amended application, supporting affidavits and written submissions. The applicant chose not to avail himself of this opportunity and the matter proceeded to hearing on 15 December 2017.
At hearing the applicant made oral submissions in which he said that:
a)he did not understand English and could not read his email;
b)he did not have a representative, although he had had a migration agent who had not helped him “manage well” the process despite the fact that he had paid for his services; and
c)he had attended before the Court on 27 September 2017 and again today because he had been told that he had to do so, and that the only thing that he knew was the dates on which he had to appear in Court and he would attend accordingly.
The Minister filed written submissions in accordance with an order made by a Registrar of this Court and also made oral submissions, which, in summary, were to the following effect:
a)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;
b)there was no evidence that an agent had ever been involved on behalf of the applicant in the proceedings before the Tribunal or otherwise;
c)no case of negligence by an agent can be sustained in the absence of such evidence, and in any event the applicant appeared to acknowledge that he was required to attend before the Tribunal, but did not attend by reason of his own lack of diligence and management; and
d)nothing said by the applicant raised any additional, or any, allegation or grounds for sustaining a finding of jurisdictional error in either the First or Second Tribunal Decision.
Consideration
Jurisdictional error required
A decision by the Tribunal 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; 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.
This Court does not have the jurisdiction to review the merits of a Tribunal decision, or determine an applicant’s claim for a visa: 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”).
Decision on failure to appear
The Tribunal has the power to dismiss an application without any further consideration in circumstances where an applicant has been invited before the Tribunal to appear in accordance with s.425 of the Migration Act, and does not appear when scheduled to do so: Migration Act s.426A(1A). While the Tribunal has the discretion to exercise this right without interference from this Court, it must ensure when doing so that the applicant is afforded procedural fairness and in particular the decision to proceed is not legally unreasonable in the circumstances of the case: Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 150 FCR 439; (2006) 231 ALR 630 at [39] per Spender, French and Cowdroy JJ (“SZFHC”); MZALO v Minister for Immigration & Border Protection [2016] FCA 1339 at [22]-[28] per Mortimer J (“MZALO”).
The Court notes on 10 June 2016 the Tribunal sent a letter acknowledging receipt of the review application (“Acknowledgement Letter”) to the applicant’s email address: CB 51-52. In the Acknowledgement Letter there were some typographical errors as follows:
ACKNOWLEDGEMENT OF ERROR! REFERENCE SOURCE NOT FOUND. — MR YEE FOO LEONG
We received Error! Reference source not found. for review, in relation to Error! Reference source not found. to refuse to grant a Protection visa, on 7 June 2016.
…
We have requested that the Department of Immigration and Border Protection (the department) provide us with all documents and files which they consider to be relevant to your Error! Reference source not found.
(CB 51).
On 11 June 2016 the applicant responded to the Acknowledgement Letter via email asking why the application was stating ‘error’ and if documents were needed. The Tribunal did not respond to this email. The error in the Acknowledgement Letter can be considered a “mere typographical error”: CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 at [29] per Marshall J. The Acknowledgement Letter did not deal with the time or date of any Tribunal hearing, and as such the error is not relevant to the issue of notification to the applicant of the Tribunal hearing and his subsequent non-appearance: Alraheb v Minister for Immigration & Citizenship [2009] FMCA 1284 at [120] per Nicholls FM. The Court further notes that, in any event, the applicant did not raise this issue with the Court.
Provided the Tribunal has issued an invitation to appear in accordance with s.425A of the Migration Act, the Tribunal is under no further obligation prior to the hearing to confirm the applicant has received the invitation, unless there is some indication the invitation did not reach the applicant: SZFHC at [39] per Spender, French and Cowdroy JJ. In respect of the Tribunal’s invitation for the applicant to appear at the Tribunal hearing, the Court finds the following:
a)the applicant was sent an email invitation dated 14 July 2017 (“Invitation”) to attend a hearing with the Tribunal in accordance with s.425 of the Migration Act: CB 55;
b)the Invitation clearly stated the day, time and place at which the applicant was scheduled to appear and a statement of the effect of s.426A of the Migration Act explaining that non-appearance by the applicant may result in dismissal of the application: Migration Act ss.425A(1) and (4), CB 56;
c)the Invitation 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 email address used was that which was stated in the application for review submitted by the applicant to the Tribunal, and was the same email address used in his Protection Visa Application where he expressly consented to receiving correspondence from the Minister regarding his Protection Visa Application via electronic means: CB 15 and 55;
e)the Invitation satisfies the requirements of s.425A(3) of the Migration Act by giving more than the prescribed period of 14 days’ notice as required by reg.4.35D(3) of the Migration Regulations 1994 (Cth);
f)the applicant was sent two SMS reminders to his nominated mobile telephone contact, one on 1 August 2017 and the second on 7 August 2017, stating:
Reminder - Your ATT hearing is on 08/08/17. Please check the hearing invitation to confirm details. Please do not reply: CB 62.
g)the Tribunal attempted to contact the applicant on his mobile phone number when he did not appear before the Tribunal on the day, and at the time and place stated in the Invitation, and attempted to do so on the mobile telephone number provided by the applicant on his Tribunal review application, however the call was not answered: CB 67; and
h)the applicant was declared a ‘No Show’ by the Tribunal at 10.15am, this being 15 minutes after the applicant was scheduled to appear: CB 58.
The Tribunal followed the procedure in s.425A of the Migration Act, and took the additional precautions of sending an SMS reminder to the applicant on two occasions and phoning him on the day of the Tribunal hearing. Those steps are evidence the Tribunal did not act capriciously or unreasonably when dismissing the appeal under s.426A(1A)(b) of the Migration Act: AZAFBv Minister for Immigration & Border Protection [2015] FCA 1383; (2015) 244 FCR 144; (2015) 68 AAR 171.
There is no evidence of the applicant having close contact with the Tribunal in advance of the hearing such as to suggest the Tribunal should have been more vigilant in exercising the discretion under s.426A of the Migration Act: SZFHC at [39] per Spender, French and Cowdroy JJ; MZALO at [22]-[28] per Mortimer J. The applicant was requested to return a ‘Response to hearing invitation,’ and did not do so and there was no indication an adjourned hearing would be attended given there was no satisfactory explanation for the applicant’s non-attendance. The circumstances in this case are distinguishable from those in the case of SZVFW v Minister for Immigration & Border Protection [2016] FCCA 2083, and the unreasonableness identified in the Tribunal’s decision in that matter does not arise in this case as the Tribunal:
a)identified and communicated with the applicant via both an email address and mobile telephone number;
b)could have been satisfied, in a practical sense, that the applicant was aware of the hearing date and time as no automated response indicating the email had not been sent was received; and
c)followed up with two SMS text messages which referred to the hearing date, and alerted the applicant to refer to the Invitation for details of the Tribunal hearing.
The Court does accept that a pattern of communication between an applicant and the Tribunal should not necessarily be determinative of unreasonableness, but when weighed against the other factors in this case, the Court does not consider the Tribunal has acted unreasonably, and finds that the Tribunal took all reasonable steps to put the applicant on notice of the Tribunal hearing.
Having validly exercised the discretion under s.426A(1A)(b) of the Migration Act, the applicant had 14 days to apply for reinstatement of his review application, and having not chosen to do so the Tribunal was obliged under s.426A(1E) of the Migration Act to confirm the First Tribunal Decision to dismiss the application without any further consideration: Nidanakavi v Minister for Immigration & Anor [2017] FCCA 873 at [16] per Judge Hartnett; CJU16 v Minister for Immigration & Anor [2017] FCCA 741 at [10] and [13] per Judge Vasta, affirmed on appeal in CJU16 v Minister for Immigration & Border Protection [2017] FCA 1040, and it did so in the Second Tribunal Decision.
The Court finds no jurisdictional error in the exercise of the Tribunal’s discretion pursuant to s.426A of the Migration Act.
Applicant’s Affidavit
The three statements made in the Applicant’s Affidavit have not been set up as grounds of review by the applicant, but were they to be so considered the “grounds” must be dismissed for the following reasons:
a)they are not particularised. This alone provides a basis for each of the “grounds” in the Applicant’s Affidavit to be dismissed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited); WZATH v Minister for Immigration & Border Protection [2014] FCA 969; AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard;
b)they invite the Court to engage in impermissible merits review contrary to long standing principle: Wu Shan Liang, Quin;
c)they assert no basis for a finding of jurisdictional error, and do not in their terms assert jurisdictional error in either the First or Second Tribunal Decision; and
d)absent the mention of protection fees and to the “mafia” in the claim made to the Tribunal (or the Delegate for that matter) these claims were not ones expressly made or clearly arising on the materials before the Tribunal, and, therefore, not required to be considered by it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27.
Nothing in the Applicant’s Affidavit therefore establishes jurisdictional error in either the First or Second Tribunal Decision.
Other matters
The fact that the applicant does not speak or read English does not establish jurisdictional error in either the First or Second Tribunal Decision. Language interpretation services were available to the applicant: CB 51-52, a fact seemingly known to him as he requested a Mandarin interpreter for the Tribunal hearing: CB 48.
In relation to the applicant’s assertions concerning a migration agent the Court cannot make any findings in relation thereto as the applicant did not file any evidence in relation to that issue, but even if he had, mere negligence or wrongdoing on the part of the migration agent does not establish jurisdictional error in the a decision of the Tribunal: something more, namely a fraud on the Tribunal, is required and in this case there is simply no evidence of such fraud: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510. Indeed, there is no evidence that a migration agent was ever appointed or ever acted for the applicant: CB 8, 15, 34-35, 48-49.
Neither of the matters in the preceding two paragraphs establish jurisdictional error in the First or Second Tribunal Decision.
Conclusion and orders
For the reasons set out above there is no jurisdictional error in the First or Second Tribunal Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 19 December 2017
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