EAZ22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 631
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EAZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 631
File number(s): MLG 2793 of 2022 Decision of: JUDICIAL REGISTRAR CUMMINGS Date of decision: 18 July 2023 Catchwords: MIGRATION – judicial review – application for summary dismissal of application for judicial review – where Tribunal dismissed review application after applicant failed to appear at hearing – where Tribunal confirmed dismissal decision after applicant failed to apply for reinstatement within prescribed period – whether Tribunal exercised its powers reasonably and in a manner that was procedurally fair to the applicant – whether Tribunal’s email correspondence was sent to “the last … email address … provided to the Tribunal by the [applicant] in connection with the review”. Legislation: Migration Act 1958 (Cth), ss 379A(5), 425, 425A, 425A(1), 425A(2)(a) 425A(3), 425A(4), 426A(1A)(b), 426A(1B), 426A(1E), 426A(1F), 426B(2), 426B(5)(a), 426B(5)(b), 426B(6), 441A(5), 476(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r 13.13(a)
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744, followed.
AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368, followed.
AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44, followed.
Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256, applied.
AYT16 v Minister for Immigration and Border Protection [2017] FCA 252, applied.
CZM17 v Minister for Immigration & Another [2018] FCCA 158, followed.
EWD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 832, considered.
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, applied.
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, applied.
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, applied.
Somjich v Minister for Home Affairs [2019] FCA 1921, applied.
SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789, applied.
SZTHQ v Minister for Immigration and Border Protection [2014] FCA 1231, applied.
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submissions: 5 July 2023 Date of hearing: 18 July 2023 Place: Adelaide Applicant: In person by telephone with the assistance of a Thai interpreter Solicitor for the First Respondent: Mr A Slevison of the Australian Government Solicitor by Microsoft Teams ORDERS
ML 2793 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EAZ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDICIAL REGISTRAR CUMMINGS
DATE OF ORDER:
18 JULY 2023
THE COURT ORDERS THAT:
1.The application for judicial review filed on 17 December 2022 be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The applicant pay the first respondent’s costs fixed in the amount of $2,500.
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).
REASONS FOR DECISION
JUDICIAL REGISTRAR CUMMINGS
On 17 December 2022, the applicant applied to this Court for judicial review of a decision made by the second respondent (the Tribunal) on 30 November 2022.
By his response filed on 17 February 2023, the first respondent (the Minister) contended that the applicant’s application should be summarily dismissed because it has no reasonable prospects of success.
I heard the summary dismissal application on 18 July 2023. At the conclusion of that hearing, I was satisfied that the applicant had no reasonable prospects of successfully prosecuting her judicial review application. In those circumstances, I made orders summarily dismissing the judicial review application with costs. These are my reasons for making those orders.
BACKGROUND
On 22 February 2022, a delegate of the Minister refused to grant a protection visa to the applicant.
On 4 March 2022, the applicant applied to the Tribunal for review of the delegate’s decision. She provided a contact email address (the 730 address) and residential address in the application form, but no contact phone number.
On 15 May 2022, the applicant emailed the Tribunal in relation to Medicare issues. The email was not sent from the 730 address; rather, it came from a different address (the 913 address). On 18 May 2022, the Tribunal sent an email to the 913 address which relevantly stated the following (emphasis in original):
In response to your email below, we noticed that the email address is unknown to the Tribunal, therefore we are unable process the request.
If you still wish to continue with the request, please contact the AAT by: Telephone on (02) 9276 5000 or via our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
If you do not contact us no further action will be taken by the AAT.
There is no evidence to suggest that the Tribunal received any further emails from the 913 address or the 730 address, or that the applicant contacted either of the telephone numbers referred to in the 18 May 2022 email from the Tribunal.
On 25 October 2022, the Tribunal invited the applicant to attend an in-person hearing on 14 November 2022. The invitation was emailed to the 730 address. The invitation relevantly stated the following:
What will happen if you don't appear
If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. Not appearing at the scheduled hearing means:
•if you were invited to appear at an AAT office (including by video from an AAT office), you do not attend the AAT office at the scheduled time;
…
A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
The email attaching the hearing invitation also attached a fact sheet that reiterated the potential consequences of the applicant failing to appear at the hearing.
The applicant did not attend the hearing on 14 November 2022. Later that day, the Tribunal dismissed the review application pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the Act) (the dismissal decision). The Tribunal’s decision record for the dismissal decision relevantly states the following:
The review applicant was invited under s 425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 14 November 2022 at 2:00pm AEDT. The invitation stated that if she 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.
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), and that the invitation has not been returned to sender. No satisfactory reason for the non-appearance has been given.
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 notified the applicant of the dismissal decision by email sent to the 730 address on 14 November 2022. The cover letter accompanying the dismissal decision relevantly stated the following:
You may apply to us, in writing, for reinstatement of the application by 28 November 2022. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
The applicant did not apply for reinstatement of the review application by 28 November 2022. On 30 November 2022, the Tribunal exercised the power in s 426A(1E) by confirming the dismissal decision (the confirmation decision). The Tribunal’s decision record for the confirmation decision relevantly states the following:
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.
PROCEEDINGS IN THIS COURT
Summary dismissal of judicial review applications concerning migration decisions
As explained by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [46]; (2013) 249 CLR 332 at 357:
(1)The jurisdiction of the Federal Magistrates Court (now known as the Federal Circuit and Family Court of Australia (Division 2)) to review certain categories of decisions made under the Act (including the decisions of the Tribunal which are the subject of these proceedings) arises under s 476(1) of the Act;
(2)The jurisdiction conferred by s 476(1) is equivalent to the jurisdiction conferred on the High Court of Australia under s 75(v) of the Constitution; and
(3)The remedies provided by s 75(v) are available only for jurisdictional error.
The Minister’s application for summary dismissal invokes r 13.13(a) of the Rules, which provides that the Court may order that a proceeding be dismissed if the Court is satisfied that “the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim”.
The combined effect of the abovementioned provisions is that the question for this Court in determining the application for summary dismissal is whether the Court is satisfied that the applicant has no reasonable prospects of establishing that the Tribunal’s decisions (or either of them) are affected by jurisdictional error.
It is not my function to conclusively determine whether the Tribunal’s decisions (or either of them) are affected by jurisdictional error. I am instead concerned with whether the application for judicial review raises a “real or genuine dispute as to any material fact that might reasonably be resolved in the applicant’s favour after drawing all reasonable inferences in favour of [the applicant]” (AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] per Judge Given). Summarily dismissing the application for judicial review would also be inappropriate if, based on the available materials, there appears to be a “real question of law” that should be decided at trial (Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46]; (2013) 220 FCR 256 at 271 per Reeves J).
It is for the Minister, as the moving party in respect of the application for summary dismissal, to satisfy me that the applicant has no reasonable prospects of successfully prosecuting the application for judicial review at a final hearing (AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 at [37] per Deputy Chief Judge Mercuri).
Hearing of the Minister’s summary dismissal application
Documents
The applicant has applied for judicial review of the confirmation decision but not the dismissal decision. The grounds contained in the application are as follows:
These were the documents the parties asked me to read in determining the summary dismissal application:
(1)The applicant’s application for judicial review filed on 17 December 2022;
(2)The applicant’s affidavit filed on 17 December 2022 (which annexed the confirmation decision);
(3)The Minister’s response filed on 17 February 2023, which contains the summary dismissal application that is the subject of these reasons;
(4)The court book filed by the Minister on 4 April 2023;
(5)The Minister’s outline of submissions filed on 5 July 2023; and
(6)The affidavit of Adam James Slevison filed on behalf of the Minister on 5 July 2023.
I admitted the documents referred to above at (2), (4) and (6) into evidence at the hearing of the summary dismissal application.
Oral submissions
Noting that the applicant was unrepresented, I gave her an explanation as to the nature of the Court’s role in undertaking judicial review and the common categories of jurisdictional error.
In circumstances where the Minister was the moving party in respect of the summary dismissal application, I invited his solicitor to make submissions as to why I should be satisfied that the applicant’s substantive application has no reasonable prospects of success. The Minister’s oral submissions were to the same effect as those made in his written submissions. In short, the Minister contended that it was open to the Tribunal to dismiss the applicant’s review application after they failed to appear at the hearing, and the applicant’s subsequent failure to apply for reinstatement of the review application meant that the Tribunal was obliged by law to confirm the dismissal decision. The Minister also submitted that the applicant had no reasonable prospects of substantiating certain factual allegations made in her grounds of review, a topic to which I return later in these reasons.
I then invited the applicant to make oral submissions as to what she thought the Tribunal “did wrong” in dealing with her case. Her response was “I have no reason”. I then explained to the applicant for a second time the consequences that would flow if I was satisfied that the applicant had no reasonable prospects of successfully prosecuting her judicial review application, before again inviting her to tell me what she thought the Tribunal did wrong. The applicant’s response was to the effect that she had nothing further she wished to add.
Consideration
The grounds in the applicant’s application do not clearly explain the nature of the jurisdictional errors that the applicant alleged were committed by the Tribunal. The grounds also contain statements that do not relate to this matter. For example, in ground 4, it is asserted that the applicant attended a hearing in the Tribunal and provided the Tribunal with three folders of material. Neither of those assertions are correct. The evidence before the Court confirms that to be the case and the applicant made no attempt in the hearing before me to contend that the assertions were correct, despite Mr Slevison explicitly putting those matters in issue in his written and oral submissions. I am satisfied that the applicant has no reasonable prospects of successfully establishing that she gave the Tribunal three folders of material or that she attended a hearing at the Tribunal.
The existence of the erroneous factual assertions in the applicant’s grounds must be seen in the context of the same grounds appearing (with only slight variations) in hundreds of other matters that are either pending in this Court or have recently been determined. However, as noted by Judge Vasta in EWD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 832 at [36], “the duty of the Court is to ignore [the template nature of the applicant’s grounds] and adjudicate the matter on the merits”.
The applicant’s oral submissions also did not contain any allegation of error on behalf of the Tribunal at all, let alone a reasonable arguable allegation of jurisdictional error.
In light of the foregoing, I engaged in my own assessment of the evidence before me with a view to determining whether I was satisfied that the applicant has no reasonable prospects of successfully arguing at a final hearing that the Tribunal’s decisions (or either of them) are vitiated by jurisdictional error. It is convenient to explain the outcome of my analysis by reference to these questions:
(1)Did the Tribunal have power to make the dismissal decision?
(2)Did the Tribunal act reasonably and in a procedurally fair manner in making the dismissal decision?
(3)Did the Tribunal have power to make the confirmation decision?
(4)Did the Tribunal act reasonably and in a procedurally fair manner in making the confirmation decision?
(5)Did the Tribunal email the relevant correspondence to the correct email address?
Did the Tribunal have power to make the dismissal decision?
Section 426A(1)-(1A) of the Act provide as follows:
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
The dismissal power in s 426A(1)A)(b) is conditioned upon the relevant applicant having been validly invited under s 425 to appear before the Tribunal (ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744 at [50] per Judge Kendall). For the reasons that follow, I am satisfied that the hearing invitation extended to the applicant in the matter at hand complied with the requirements imposed by ss 425 and s 425A of the Act, and that the applicant does not have reasonable prospects of successfully establishing the contrary position at a final hearing of her judicial review application:
(1)The hearing invitation indicated the date, time and means by which the applicant could attend the hearing, as is required by s 425A(1).
(2)The invitation was addressed to the applicant and was conveyed to the applicant by email to the contact email address provided in the Tribunal review application (the 730 address), email being an approved communication method for the purposes of ss 425A(2)(a) and 441A(5) (I return to this issue later in these reasons).
(3)The invitation was given to the applicant on 25 October 2022, which constituted a notice period for the hearing that exceeded the minimum prescribed by s 425A(3) and reg 4.35D of the Migration Regulations 1994 (Cth).
(4)The invitation contained a statement explaining what would happen if the applicant did not attend the hearing, as is required by s 425A(4) of the Act.
In light of the foregoing, I was satisfied that the dismissal power in s 426A(1A)(b) was enlivened in the matter at hand by reason of the applicant’s failure to appear at the hearing to which she had been invited by the Tribunal. I was also satisfied that the applicant did not have reasonable prospects of successfully establishing the contrary position at a final hearing of her application.
Some of the applicant’s grounds could be articulated as comprising a complaint about procedural fairness. The applicant made no attempt to particularise any such complaint. For the foregoing reasons, I am satisfied that the Tribunal complied with the procedural fairness obligations imposed on it by Part 7 of the Act in the process that culminated in it making the dismissal decision. There is nothing before me to suggest the applicant has any reasonable prospects of successfully arguing that the Tribunal committed a breach of any common law procedural fairness obligations, and at the conclusion of the summary dismissal hearing I found myself to be satisfied that the applicant did not have reasonable prospects of successfully making such an argument at a final hearing. I note, for the sake of completeness in relation to the topic of procedural fairness, that “there is no free-standing obligation on the Tribunal in every case in which there has been a failure to respond to a hearing invitation or a failure to appear at a scheduled hearing to search its records to seek to find another way of communicating with the applicant, or to adjourn the hearing” (SZTHQ v Minister for Immigration and Border Protection [2014] FCA 1231 at [41] per Murphy J), nor was the Tribunal obliged to invite the applicant to comment on whether the Tribunal should proceed under s 426A prior to the Tribunal so deciding (SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789 at [35] per Middleton J).
Did the Tribunal act reasonably and in a procedurally fair manner in making the dismissal decision?
The dismissal power in s 426A(1A)(b) must be exercised reasonably (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4]; (2018) 264 CLR 541 at 549). I am satisfied that the exercise of the power in the matter at hand was reasonable, and that the applicant does not have reasonable prospects of successfully establishing the contrary position at a final hearing of her application. I am of that view because the reasons the Tribunal gave as to why it exercised the power in the way that it did comprise an intelligible justification for the exercise of the power (Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [58]); (2014) 231 FCR 437 at 446-447). The gist of those reasons was that, despite being validly invited to the hearing and informed of the consequences of not attending at same, the applicant did not appear at the hearing and no satisfactory reason for the non-appearance had been provided. As was said by Gageler J in SZVFW at [96] (CLR 570) (internal citations omitted):
Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that "no sensible [Tribunal] acting with due appreciation of its responsibilities" could have taken that course.
Contrary to a point the applicant appeared to have been attempting to make in some of her grounds (see, for example, grounds 3- 5), the Tribunal was not obliged to evaluate the strength of the applicant’s protection claims in determining how to exercise the dismissal power in s 426A(1A)(b) (CZM17 v Minister for Immigration & Another [2018] FCCA 1587 at [25] per Judge Driver). At the conclusion of the summary dismissal hearing, I found myself to be satisfied that the applicant did not have reasonable prospects of successfully establishing the contrary position at a final hearing of her application for judicial review.
Did the Tribunal have power to make the confirmation decision?
Sections 426A(1B) and 426A(1E) provide as follows:
(1B) If the Tribunal dismisses the application [pursuant to s 426A(1A)(b)], the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
…
(1E) If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
I am satisfied that the applicant was notified of the dismissal decision for the purposes of s 426B on the date the decision was emailed to her, namely, 14 November 2022. On that day, the applicant was given a written statement of decision that complied with the requirements of s 426B(2). That statement was conveyed to the applicant through email, a method specified in s 441A, as required by s 426B(5)(b). The statement was provided to the applicant within the 14-day period referred to in s 426B(5)(a). The applicant was also given a statement describing the effect of ss 426A(1B) to (1F), as required by s 426B(6).
The 14-day period referred to in s 426A(1B) therefore expired on 28 November 2022. It follows from the mandatory terms of s 426A(1E) that the decision the Tribunal made on 30 November 2022, namely, the confirmation decision, was the only decision the Tribunal could validly make in light of the applicant’s failure to apply in writing for reinstatement of the review application (AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10] per Perram J).
Did the Tribunal act reasonably and in a procedurally fair manner in making the confirmation decision?
The fact that the Tribunal was “obliged by law” (AYT16 at [10]) to make the confirmation decision necessarily means that the Tribunal’s decision to proceed in that way was not legally unreasonable or procedurally unfair to the applicant. Even if it was the case that the applicant’s failure to appear at the Tribunal hearing was beyond her control, as appears to be alleged by ground 4, the Tribunal had no power to do anything other than confirm the dismissal decision given the applicant’s failure to make a written reinstatement application within the 14-day period. I note for completeness that there is no evidence that the applicant ever told the Tribunal that her failure to attend the hearing was caused by events or circumstances that were outside her control, nor was there any material before the Tribunal that ought to have put it on inquiry in relation to that issue.
Did the Tribunal email the relevant correspondence to the correct email address?
Section 425A(3) required the Tribunal to give the hearing invitation to the applicant by one of the methods specified in s 441A, and s 426B(5)(b) required the Tribunal to notify the applicant of the dismissal decision by one of the methods specified in s 441A. Sections 441A(1) and (5) relevantly provide:
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
…
(5) Another method consists of a member or an officer of the Tribunal transmitting the document by:
…
(b) email; …
to:
(d) the last … email address … provided to the Tribunal by the recipient in connection with the review; …
I have considered whether the email address to which the Tribunal sent those two documents the applicant (the 730 address) was the “the last … email address … provided to the Tribunal by the recipient in connection with the review” in circumstances where the only email the applicant sent the Tribunal during the review was the request for Medicare information which was sent from the 913 address. The email from the 913 address stated the following:
Subject: Letter for renewing Medicare card for [applicant’s name]
Dear sir/madam
I would like to renew my interim Medicare card can you please provide a confirmation letter from AAT so I can send to Medicare.
My full name is [applicant’s name]
My day of birth [applicant’s birth date]. My visa class review is protection visa 866.
My phone number is [applicant’s phone number]
Thank you very much.
Yours sincerely,
[Applicant’s name]
I am satisfied that the applicant does not have reasonable prospects of successfully prosecuting her application for judicial review by arguing that s 441A(5) obliged the Tribunal to send the relevant documents to the 913 address as opposed to the 730 address. I consider that this Court is bound to reach that conclusion by reason of the judgment of Rangiah J in Somjich v Minister for Home Affairs [2019] FCA 1921. In that judgment, his Honour relevantly stated the following at [57]-[59] in relation to s 379A(5) of the Act, which is relevantly indistinguishable from s 441A(5) (emphasis added):
… The purpose of s 379A(5) is both to place an onus the applicant to keep the Tribunal notified of his or her address for the receipt of documents and to allow the Tribunal to comply with its obligation to provide documents by sending them to the address provided. In this context, the expression “provided to the Tribunal...in connection with the review” is not satisfied merely by an applicant providing an email address that has some tenuous, unclear and uncertain relationship with the review. The provision requires that applicant make it sufficiently clear to the Tribunal that the email address provided is the email address that is to be used for the provision of documents.
While the appellant sent several emails to the Tribunal from the Hotmail address, those emails did not give any clear indication that the Hotmail address, and not the Gmail address, was to be the address to which documents were to be sent. To the contrary, on 1 May 2018, the appellant provided the Tribunal with a form indicating that there was to be no change to his contact details in circumstances where his application form had given the Gmail address as his address for correspondence. The statement in that form that he wished documents to be sent to him and not his former agent did not assist in circumstances where he had not made it apparent that the Gmail address was that of the agent.
In SZBHU v Minister for Immigration and Citizenship [2007] FCA 1614, Gilmour J observed at [49] that the Pt 7 provision equivalent to s 379A does not identify any particular method by which an applicant may provide an address for service to the Tribunal. Section 379A(5) does not require any particular degree of formality in the provision of the relevant email address. It is not essential, for example, that a “Change of Contact Details—MR Division” form (which is not a prescribed form) be completed in order to provide a new email address. However, the mere sending of emails from the Hotmail address gave no indication that the Hotmail address was the address to be used for the provision of documents instead of the Gmail address. The Hotmail address was not, in my opinion, “provided to the Tribunal in connection with the review”.
There is nothing in the sole email the applicant sent from the 913 address that made it “sufficiently clear” that the 913 address was to be used by the Tribunal for the provision of documents. Although, as was held in Somjich, the applicant’s failure to provide a completed Change of Contact Details form is not determinative of the issue, I consider that the Tribunal was entitled to proceed on the basis that the applicant wished to continue to receive correspondence via the 730 address in circumstances where there is no request in the email from the 913 address that all correspondence for the purposes of the review be sent by the Tribunal to the 913 address instead of the 730 address. It is also relevant that the applicant did not respond to the email the Tribunal sent to the 913 address that specifically concerned the issue of whether the applicant wished to change her contact email address.
CONCLUSION
In light of all of the foregoing matters, I found myself to be satisfied at the conclusion of the summary dismissal hearing that the applicant did not have reasonable prospects of successfully prosecuting her application for judicial review. I was also satisfied that there were no real issues of fact or law that could reasonably be decided in the applicant’s favour were the matter to proceed to a final hearing. It was in those circumstances that I decided it was appropriate for the application to be summarily dismissed pursuant to r 13.13(a) of the Rules. I ordered accordingly.
The Minister sought an order requiring the applicant to pay the Minister’s costs fixed in the amount of $2,500. I was satisfied that costs should follow the event. The amount sought by the Minister was significantly less than the Court’s scale as set out in Division 1 of Part 2 of Schedule 2 of the Rules for proceedings that end at this stage ($4,189.38), and I therefore considered that the amount claimed by the Minster was appropriate. I ordered accordingly.
44 I certify that the preceding 43 (forty-three) numbered paragraphs are a true copy of the Reasons for Decision of Judicial Registrar Cummings.
Legal Case Manager:
Dated: 18 July 2023
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