DWX17 v Minister for Immigration
[2017] FCCA 3210
•19 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DWX17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3210 |
| 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, 426B, 441A, 441C, 474, 476 Migration Regulations 1994 (1994), reg.4.35D |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 DUL17 v Minister for Immigration [2017] FCCA 2878 Kaur v Minister for Immigration & Border Protection [2014] FCA 915; (2014) 236 FCR 393 |
| Applicant: | DWX17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 467 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
| 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 Second Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 467 of 2017
| DWX17 |
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”) made on 23 August 2017. The Tribunal decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) 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 a valid visa on 7 March 2013, and upon expiry of that visa on 7 June 2013 remained in Australia as an Unlawful Non-Citizen: CB 4;
b)on 13 January 2016 the applicant applied for a Protection Visa (“Protection Visa Application”) stating the following grounds in his application:
i)he is bullied on account of his Chinese ethnicity, and his skin colour, by the Malay people and if he returned he will continue to be bullied and beaten: CB 30;
ii)he and his family are often bullied and disturbed: for example, his car was damaged when he was parking it outside of his house in one circumstance and his children are teased so much they do not wish to go to school: CB 31-32;
iii)no one can help him because they are scared of what the Malay people will do and the police do not take action when he makes a report: CB 32;
iv)he cannot move because Malay people are all the same and will treat him the same anywhere in the country and his life will be in danger anywhere: CB 31-32 and;
v)he is very afraid to return to Malaysia as he has suffered a lot and is scared everything will be the same if he goes back: CB 32;
c)on 24 May 2016 the Delegate’s Decision was to refuse the applicant a Protection Visa;
d)the applicant lodged an application for review with the Tribunal on 7 June 2016 and was invited to appear before the Tribunal on 8 August 2017: CB 57 and 60;
e)the applicant did not appear at the Tribunal hearing on 8 August 2017 and was given notice of a decision to dismiss the application later that day: CB 70-72 (“First Tribunal Decision”); and
f)on 23 August 2017 the Tribunal confirmed the First Tribunal Decision to dismiss the review application on account of the applicant’s non-appearance: CB 76 (“Second Tribunal Decision”).
Tribunal Decisions
The Tribunal notified the applicant of the First Tribunal Decision to dismiss his application on 8 August 2017 on account of his non-appearance, and advised the applicant that if he wished to apply for reinstatement of his review application he must do so by 22 August 2017. In the First Tribunal Decision it is noted that:
a)the Tribunal hearing invitation advised the applicant a non-appearance may result in the review application being dismissed without any consideration of the information before it: CB 72 at [1];
b)two SMS reminders of the time and date of the Tribunal hearing had been sent to the applicant’s nominated telephone: CB 72 at [1]-[2];
c)an attempt to contact the applicant on his nominated telephone number was made at the time of the Tribunal hearing, and the call was answered by a person who stated they did not speak English: CB 72 at [2]; and
d)the Tribunal received no reason or explanation for the applicant’s non-appearance at the Tribunal hearing.
The applicant did not make any application for reinstatement and on 23 August 2017 the Tribunal published the Second Tribunal Decision, which reads as follows:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 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].
Judicial Review Application
The applicant lodged his Judicial Review Application and an affidavit sworn 30 August 2017 (“Applicant’s Affidavit”) in this Court on 30 August 2017. The grounds stated in the Judicial Review Application are as follows:
1. There exists jurisdictional error.
The tribunal wrongly applies the 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 real risk for me to suffer significant harm if I return to Malaysia.
2. The tribunal treats my case unfairly.
[copied verbatim]
The Applicant’s Affidavit states as follows:
1. I was been force by malay people to pay them protection fee
2. The malay people threatened me and treat me unfairly
3. My life are in danger and was harm by the malay for many times
On 27 September 2017 a Registrar of this Court made orders granting the applicant an opportunity to file an amended application, any further supporting affidavits and written submissions. The applicant did not avail himself of this opportunity and the matter proceeded to a hearing on 15 December 2017. At the hearing the applicant was permitted to make such oral submissions as he wished. Perhaps unsurprisingly the applicant said nothing about the grounds as they appear in the Judicial Review Application. Rather, the applicant asserted that:
a)he had had a migration agent assisting him with the application to the Tribunal;
b)the agent had disappeared to Malaysia and was uncontactable;
c)he did not understand the email, and the email address provided was that of the agent; and
d)the applicant does not speak English.
The Minister relied upon the written submissions which had been filed in accordance with the orders made by a Registrar of this Court on 27 September 2017, and made further oral submissions in relation to the applicant’s oral submissions at hearing, all to the following effect:
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 in the Judicial Review Application are particularised and failure to particularise grounds itself 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;
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;
e)observed that the email address used for the Tribunal application is the same email address as has been used on the originating application in these proceedings;
f)observed that there is no evidence of the matters asserted by the applicant in relation to his being represented by a migration agent, the migration agent abandoning the applicant, or the migration agent being responsible for the email address on the application to the Tribunal; and
g)the mere negligence of an agent, if that is what is asserted by the applicant, is insufficient to establish jurisdictional error, but in any event, there is no evidence of such negligence.
The Court notes, as it did during the course of the hearing, that the email address on the application to the Tribunal and on the originating application for this Judicial Review Application comprise the applicant’s initials and surname and an email service provider’s .com address.
The Court also notes that the residential address provided by the applicant for the purposes of the application to the Tribunal and the Judicial Review Application in this Court is identical.
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 (“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”).
Decision on failure to appear
In relation to the invitation to appear before the Tribunal, the Court observes the following:
a)the applicant was sent an email invitation dated 14 July 2017 (Email Invitation) to attend a hearing with the Tribunal in accordance with s.425 of the Migration Act: CB 60;
b)the Email Invitation clearly stated the day, time and place at which the applicant was scheduled to appear and a statement as to the effect of s.426A of the Migration Act, namely that non-appearance before the Tribunal may result in dismissal of the application: Migration Act ss.425A(1) and (4), CB 60;
c)the Email 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 Email Invitation 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 applicant was sent two SMS reminders to his nominated mobile telephone contact, the first on 1 August 2017 and the second on 7 August 2017, stating (at CB 62):
Reminder - Your MT hearing is on 08/08/17. Please check the hearing invitation to confirm details. Please do not reply:
At the Tribunal hearing the applicant was sought to be contacted by the Tribunal Member on the same mobile telephone contact number the SMS reminders were sent to. The Tribunal briefly noted ‘the call was answered by a person who stated that they did not speak English’ CB 72 at [2]. At 11.45am, 15 minutes after the applicant was invited to appear, the Tribunal declared the applicant a ‘no-show:’ CB 63.
Subsequent to the Tribunal hearing, and the making of the First Tribunal Decision to dismiss the application for non-appearance, the Tribunal was required to comply with the requirements of s.426B of the Migration Act concerning the making of a written statement of its decision and notification thereof to the applicant.
The Tribunal complied with s.426B of the Migration Act in that following the Tribunal hearing on 8 August 2017, the Tribunal:
a)made a written statement of its decision and reasons for decision (the First Tribunal Decision) as required by s.426B(2) of the Migration Act;
b)pursuant to s.426B(5)(a) of the Migration Act, 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 the same day being 8 August 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 8 August 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 22 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.
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 finds the Tribunal has acted in accordance with the s.425 of the Migration Act when extending an invitation for the applicant to a hearing, and it was a valid exercise of the Tribunal’s discretion under s.426A(1A)(b) of the Migration Act to dismiss the application: 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”). Having validly exercised the discretion under s.426A(1A)(b) of the Migration Act, absent any application for reinstatement received from the applicant the Tribunal was 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.
In relation to the applicant’s assertions concerning the alleged 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 or that the email address provided to the Tribunal was not that of the applicant: CB 8, 15, 34-35, 54-55.
The Court also considers there is nothing unreasonable in the Tribunal exercising the discretion in the way it did in circumstances where there was nothing to alert the Tribunal to the applicant’s non-appearance as being out of character or amiss: Minister for Immigration & Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 at [56] per Griffiths, Kerr and Farrell JJ. There is no evidence before the Court the applicant had maintained close contact or engagement with the Tribunal in the lead up to the proceedings, and the applicant failed to return the enclosed ‘response to the hearing invitation’ so as to alert the Tribunal that he actually wanted to partake in a hearing: Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 (“SZFHC”); (2006) 150 FCR 439; (2006) 231 ALR 630 at [39] per Spender, French and Cowdroy JJ; MZALO v Minister for Immigration & Border Protection [2016] FCA 1339; (2016) 70 AAR 495 at [22]-[28] per Mortimer J (“MZALO”); AZAFBv Minister for Immigration & Border Protection [2015] FCA 1383; (2015) 244 FCR 144; (2015) 68 AAR 171 (“AZAFB”).
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: SZFHC. 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 at [22]-[28] per Mortimer J. Further, the Tribunal sent SMS reminders to the applicant of the date of the Tribunal hearing, and made an unsuccessful attempt to contact the applicant on the mobile phone number provided by the applicant during the hearing: AZAFB. Finally, the applicant was afforded the opportunity to respond to the First Tribunal Decision to dismiss, and to seek to have it set aside, and made no attempt to do such. The Court is satisfied the Tribunal has not acted unreasonably.
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.
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 the First Tribunal Decision bound the Tribunal to confirm the decision to dismiss the Protection Visa Application : Migration Act s.426A(1E).
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 57-58, a fact seemingly known to him as he requested a Cantonese interpreter for the Tribunal hearing: CB 54.
The Court finds no jurisdictional error in the exercise of the Tribunal’s discretion pursuant to s.426A of the Migration Act in the making of the First and Second Tribunal Decisions.
Grounds of Review
Having concluded that there is no jurisdictional error in the making of the First and Second Tribunal Decisions it is strictly unnecessary for the Court to consider the applicant’s grounds of review in the Judicial Review Application. It is to be noted the grounds of review in the Judicial Review Application are identical to those recently considered by this Court in DUL17 v Minister for Immigration [2017] FCCA 2878 (“DUL17”). In DUL17 it was likewise strictly unnecessary for the Court to consider the grounds of review in the Judicial Review Application, but the following general reasons as to why the Judicial Review Application ought to be dismissed were set out. The Court considers those general reasons from DUL17, which follow, to be applicable to the present case:
a) The grounds 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.
DUL17 at [25] per Judge Lucev.
Applicant’s Affidavit
The matters referred to in the Applicant’s Affidavit are all factual matters alleged by the applicant, and invite the Court to engage in impermissible merits review: Wu Shan Liang; Quin, and establish no jurisdictional error in the First or Second Tribunal Decision, particularly where the applicant’s review application to the Tribunal was dismissed for non-appearance.
Conclusion and orders
For the reasons set out above there is no jurisdictional error in either 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-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 19 December 2017
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