Dxo17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 171
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 171
File number(s): MLG 1883 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 7 March 2022 Catchwords: MIGRATION - review of the Administrative Appeals Tribunal affirming a decision of the delegate not to grant the applicant a protection visa – evidence of applicant having departed Australia - no appearance by applicant – proceedings determined on a final basis for the interest in the administration of justice – application dismissed Legislation: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: AUD15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1471
BHO17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 2257
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 7 March 2022 Place: Sydney The Applicant: No appearance by or on behalf of the applicant Solicitor for the Respondents: Ms C Oppel of Australian Government Solicitor ORDERS
MLG 1883 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXO17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
7 MARCH 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application filed on 31 August 2017 is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,900.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
On 31 August 2017, the applicant filed an application to show cause seeking a review of the Administrative Appeals Tribunal (Tribunal) affirming a decision of the delegate not to grant the applicant a protection visa. At the time the applicant commenced these proceedings he gave his email address as a particular gmail address (applicant’s gmail address). On 2 May 2018, a Registrar of this Court made orders for the preparation of the matter including orders that the applicant have leave to file and serve any Amended Application with proper particulars of the grounds of the application at least 28 days before the hearing. No such document was filed in accordance with that grant of leave, or at all.
On 22 December 2021, the matter was brought into my docket and listed for hearing at 10.15am on 7 February 2022, with consequential orders that the applicant and the first respondent file submissions 14 and seven days before the hearing, respectively.
On 23 December 2021 a listing notice was sent to the parties as follows:
(a)to the applicant at the applicant’s gmail address (which had not changed as the email address for service despite him filing a fresh Notice of Address for Service on 29 April 2019); and
(b)to the solicitors for the first respondent at the email address given on the Notice of Address for Service filed on 3 October 2017. No further Notice of Address for Service has been filed for the first respondent since that time.
On 4 February 2022, my chambers wrote to the parties by email inquiring as to the whereabouts of the Minister’s written submissions which were due to be filed on or by 28 January 2022. After further exchanges with my Associate, the Court was informed that the listing notice had been overlooked by the Minister’s solicitors and accordingly I adjourned the matter for one month to 10.15am today.
On 4 March 2022 the parties were sent a link by email from my chambers for today’s hearing, which is being held by Microsoft Teams. At 10.20am today when I ascended the bench, the applicant was not present in the online hearing forum. An interpreter in the Malay language has been present in the online forum since the commencement of the hearing and will remain so until it concludes. In the event that the applicant attends during the course of the delivery of these reasons, we will deal with that eventuality.
I had the matter called outside the Courtroom out of an abundance of caution at 10.23am, and I note that there was no appearance by or for the applicant in person. The solicitor for the first respondent makes an application the proceedings be dismissed for want of an appearance. In support of this, was read two affidavits of Keith Maxwell Sypott affirmed on 28 February 2022 and on 2 March 2022 respectively.
Annexure “KMS-02” to the March Sypott Affidavit is an email from the deponent dated 7 February 2022 to the applicant. In addition, there is an email from the deponent to the applicant dated 28 February 2022 which forms “KMS-03” to the March Sypott Affidavit. Neither annexures “KMS-02” nor “KMS-03” to the March Sypott Affidavit, being the last two pieces of correspondence which appear to have been sent by the first respondent’s solicitors to the applicant, notified the applicant that in the event that he did not appear the first respondent reserved the right to seek dismissal with costs.
While it is not a requirement of the Court’s Rules, it is preferable that if a party intends to seek dismissal, particularly against an unrepresented litigant, that this be foreshadowed in advance. This is moreso when the moving party has obligations to conduct themselves as a model litigant. The first respondent’s solicitor submits that I would be satisfied, in any event, that the applicant was aware of today’s hearing event.
It is perhaps not wholly unexpected that the applicant has not appeared today. By the February Sypott Affidavit I have evidence before me that the first respondent’s Department maintains a database called the Integrated Client Services Environment (ICSE) which includes information about the visa status and the movement into and out of Australia of non-citizens. Also before me, and forming annexure “KMS-01” to the February Sypott Affidavit are ICSE records which evidence that:
(a)the applicant departed Australia on 8 January 2021 and has not returned to Australia since then;
(b)the bridging (WA-010) visa previously held by the applicant ceased on 8 January 2021 at the time the applicant departed Australia; and
(c)the applicant is recorded as being offshore.
Notwithstanding that the potential dismissal does not seem to have been presaged to the applicant in any recent correspondence, I am satisfied that he has been notified of today’s hearing in several ways and has, for whatever reason, chosen not to attend. As noted earlier, the first respondent’s solicitor makes an application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) consequent upon the applicant’s non-appearance. I asked the solicitor for the first respondent if she wished to be heard against the matter being determined on a final basis, and she indicated that the first respondent did not wish to be heard on that issue but that if the matter was to be so dismissed, then the first respondent would seek to rely on the written submissions which were filed in the matter.
The first respondent says by those submissions that cl 866.411 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) prescribes that one of the criterion for the grant of the protection visa sought by the applicant was that he must be in Australia. Accordingly, given that he is offshore and with no right of return, the first respondent says that the Tribunal would be required, in any event, to affirm the decision of the delegate even if the matter were remitted for consideration by reason of a jurisdictional error: see AUD15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1471 at [8] per Abraham J and BHO17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 2257 at [2] per Heffernan J.
In that sense, even if the applicant has not attended today by reason of some misadventure, it seems to me that there would be no proper basis to set aside orders made today if they were entered in his absence such as to enable the proceeding to be re-enlivened. That is because even if the applicant has a persuasive reason for his non-attendance at the online hearing, and even if the period of seeking delay in such a reinstatement was not significant, and even if the applicant was able to raise grounds which were reasonably arguable at an impressionistic level then because it would be futile to remit the matter, the interim step of reinstatement would be equally futile.
Accordingly, I consider that it is in the interests of the administration of justice to consider and determine these proceedings on a final basis, and not simply dismiss the proceedings pursuant to r 13.06(1)(c) of the Rules consequent upon the non-appearance of the applicant. By his application to show cause filed on 31 August 2017, the applicant seeks judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth), but does not raise any particular grounds of review.
Under the heading grounds of review, the applicant states as follows (errors in original):
1.I dont know anything about illegal business the company doing.
2.I am afraid that my life in danger if going back to Malaysia.
3.When bank declared me as a bankruptcy, I was unable to find a job or open any bank account.
4.To support my aging father and mother including my daughter.
None of these statements in the application for review constitute proper grounds. At their height they go to the applicant’s protection claims, and to that extent, not even accurately to those. For example the suggestion in paragraph [1], that the applicant knew nothing of the illegal car business formed part of the claims for protection that he made is at odds with his having given evidence to the Tribunal that indicated in some regards to the contrary. Similarly, paragraph [3] appears to be premised on the applicant being made bankrupt, whereas there is no evidence before the Tribunal that his had already occurred. In any event, the Tribunal accepted that the applicant might be made bankrupt upon his return to Malaysia.
I am satisfied that there is no error affecting the Tribunal’s decision. However, even if I was wrong, I also agree with the Minister that there would be no utility in remitting the matter to the Tribunal, given that the applicant is offshore and, accordingly, would not satisfy the criteria for the visa, even if the Tribunal were to have occasion to reconsider it. Accordingly, I find that because the Tribunal’s decision is not affected by jurisdictional error it is a privative clause decision and should be dismissed. I so order.
I am satisfied that costs should follow the event, and further that, in all the circumstances of this case, the amount sought by the first respondent, being $4,900 is reasonable.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Given. Associate:
Dated: 16 March 2022
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