DXK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 140

FEDERAL CIRCUIT COURT OF AUSTRALIA

DXK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 140

File number(s):	SYG 2606 of 2019
Judgment of:	JUDGE STREET
Date of judgment:	1 February 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection Visa – whether the Tribunal failed to comply with its obligations under s 425 of the Migration Act 1958 (Cth) – whether the Tribunal disallowed the applicant a real and meaningful hearing – no jurisdictional error found – applicant dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5AAA, 36(2)(a), 36(2)(aa) 425, 426A, 426(1A)(a), 476.
Number of paragraphs:	18
Date of hearing:	1 February 2021
Place:	Sydney
Solicitors for the Applicant:	In person
Solicitors for the First Respondent:	Ms D. Stone, Sparke Helmore

ORDERS

SYG 2606 of 2019

BETWEEN:

DXK19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	1 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 September 2019 affirming a decision of a Delegate of the Minister (“the Delegate”) not to grant the applicant a Protection Visa (“the Visa”).

2. The applicant is a citizen of China who first arrived in Australia on 27 May 2009 as the holder of a Tourist Visa. The applicant was deported to China on 17 August 2010 and returned to Australia on a false passport on 16 September 2011.   

3. The applicant applied for a Protection Visa on 20 August 2015.  The applicant claimed to fear harm by reason of outstanding unpaid fines for having excess children and subsequent assault and illegal detention in China. The applicant, in the interview before the Delegate, also claimed to fear harm by reason of owing money to loan sharks.

4. On 28 October 2016, a Delegate found the applicant failed to meet the criteria for the grant of a Protection Visa.  The applicant applied for a review on 9 November 2016.

5. On 28 July 2019, the applicant, through his migration agent, provided a change of contact details and the invitation to attend a hearing was sent to the email address identified in that change of contact details.

6. On 27 August 2019 the Tribunal invited the applicant to attend a hearing on 17 September 2019.

7. The applicant failed to respond to the hearing invitation or attend the hearing. The Tribunal decided to proceed to determine the application, given that the applicant had been sent two SMS reminders about the hearing. The Tribunal was satisfied the applicant had been properly invited to attend the hearing in accordance with the statutory regime.

8. On 18 September 2019, The Tribunal proceeded to make a decision on the review pursuant to s 426(1A)(a) of the Act. The Tribunal identified the applicant’s claims and the relevant law, including in an attachment to the Tribunal’s reasons. Pursuant to s 5AAA of the Act it’s for the applicant to adduce sufficient evidence to establish his claims.

9. Given the failure of the applicant to attend, the Tribunal was unable to test the veracity of the applicant’s claims and was therefore not satisfied that the applicant met the criteria for a Protection Visa, in relation to the assertions advanced by the applicant as to why he now fears returning to China. Accordingly, the Tribunal found the applicant didn’t meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

10. These proceedings were commenced on 8 October 2019.  On 8 November 2019 a Judge of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.  No such documents have been filed.

11. At the commencement of the hearing the Court explained to the applicant the nature of the hearing.  The applicant put on submissions that he didn’t receive the notification for the Tribunal hearing.  It is apparent on the face of the evidence before the Court that the invitation to hearing was sent to the applicant’s migration agent in accordance with the instructions given by the applicant and the change of details provided to the Tribunal.

12. According to the statutory regime, the applicant was taken to have received the notification to the invitation in those circumstances.  Accordingly, no jurisdictional error arises by reason of the applicant’s complaints about the notification of the hearing.

13. Further, in circumstances where the applicant had failed to appear and where two reminders had been sent and there was no explanation for the failure to appear, it was reasonable for the Tribunal to proceed to determine the matter under s 426A of the Act.  No jurisdictional error arises by reason of anything said by the applicant from the bar table.

    THE GROUNDS

14. The grounds of the application are as follows:

    Jurisdictional errors were made by the Tribunal.

    (1)The Tribunal did not carefully consider my claims that I was mistreated in China and would be harmed if I returned to China.

    (2)The Tribunal rejected my claims without sounds grounds.

    (3)There exists procedural unfairness.

    The Tribunal did not give me a chance to reinstate my case.

    GROUND 1

15. In relation to Ground 1, this is simply an assertion of the applicant’s claims inviting impermissible merits review and does not identify an arguable case or at least does not identify any jurisdictional error.

    GROUND 2

16. In relation to Ground 2 where the applicant failed to appear, there was a logical and rational basis on which the Tribunal was not satisfied in respect of the applicant’s claims, taking into account also the applicant’s migration history.  No jurisdictional error is made out by Ground 2.

    GROUND 3

17. In relation to Ground 3, there is no application to reinstate the proceedings and on the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of a review.  No jurisdictional error is made out by Ground 3, including the particulars to Ground 3.

18. Accordingly, the application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 February 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       10 June 2021