EBB17 v Minister for Immigration & Anor
[2018] FCCA 48
•11 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBB17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 48 |
| Catchwords: PRACTICE AND PROCEDURE – Application for adjournment – consideration of factors – interests of administration of justice. |
| Legislation: Migration Act 1958 (Cth), ss.65, 425, 425A, 426A, 426B, 430A, 441A, 441C, 474, 476 Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 WZATH v Minister for Immigration & Border Protection [2014] FCA 969 WZATH v Minister for Immigration & Border Protection [2014] FCCA 612 |
| Applicant: | EBB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 484 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 22 December 2017 |
| Date of Last Submission: | 22 December 2017 |
| Delivered at: | Perth |
| Delivered on: | 11 January 2018 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr E Solana |
| Counsel for the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS (as made 22 December 2017)
The applicant’s oral application for an adjournment be dismissed.
The application be dismissed.
The applicant pay the first respondent’s costs in the sum of $5800.00 by 22 January 2018.
Formal written reasons for judgment be published by Chambers at a later date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 484 of 2017
| EBB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Orders made at hearing
At the hearing on 22 December 2017 the following orders were made:
(1) The applicant’s oral application for an adjournment be dismissed.
(2) The application be dismissed.
(3) The applicant pay the first respondent’s costs in the sum of $5800.00 by 22 January 2018.
(4) Formal written reasons for judgment be published by Chambers at a later date.
What follows are the Court’s formal written Reasons for Judgment as referred to in order (4) of the above orders.
Introduction
On 11 September 2017 the applicant lodged an application for judicial review (“Judicial Review Application”) under the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a protection (Class XA) visa (“Protection Visa”). A copy of the Tribunal Decision dated 28 August 2017 is at Court Book (“CB”) 74-75.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a Malaysian citizen who arrived in Australia on 15 June 2015 with a valid 3 month travel visa: CB 17;
b)on 17 November 2015 the applicant applied for a Protection Visa on the following grounds:
i)she is treated badly in Malaysia because she is Chinese, she has been beaten heavily, hurt and threatened that if she reports matters to the police her house will be burned or she will be raped: CB 29;
ii)she cannot return to Malaysia as she will suffer violence from the Malay people who come to where she lives, disturb her life and make trouble at her workplace, such that she cannot work and live a normal life in safety: CB 29;
iii)Malay people have surrounded her while she was walking home and slapped, beaten and touched her body, causing her to be hurt badly by them: CB 30; and
iv)as Malaysia is an Islamic country they do not like Chinese people so she cannot ask for help from the Government who are corrupt, and even other Chinese people do not help because they are scared, and she has tried to move to other cities but they are worse as Malay people fight the Chinese everywhere: CB 31;
c)on 24 May 2016 the Delegate refused to grant the applicant a Protection Visa: CB 44-50;
d)the applicant applied to the Tribunal for review of the Delegate’s Decision, and was sent an invitation on 17 July 2017 to attend an interview with the Tribunal on 10 August 2017: CB 56-58;
e)the applicant was sent two text messages, one dated 3 August 2017 and another 9 August 2017: CB 59, both stating:
Reminder- Your AAT hearing is on 10/08/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call… [number deleted].
f)the applicant did not appear at the Tribunal hearing: CB 60-62, and on 10 August 2017 the Tribunal dismissed her Protection Visa application for non-appearance pursuant to s.426A of the Migration Act: CB 67;
g)on 28 August 2017 the Tribunal Decision confirmed the decision to dismiss the applicant’s Protection Visa application: CB 74-75; and
h)the applicant lodged her Judicial Review Application in this Court on 11 September 2017.
The Tribunal Decision
At the Tribunal hearing on 10 August 2017 the applicant failed to appear at the designated time of 2.30PM: CB 60. During the hearing the Tribunal attempted to contact the applicant on the mobile phone number provided by the applicant, however, this call went unanswered: CB 71. The Tribunal declared the applicant a ‘no-show’.
On 10 August 2017 the Tribunal sent the applicant notification of a decision to dismiss the application for review, a statement of reasons for the decision, and a detailed information sheet stating the applicant could apply for re-instatement of her application by 24 August 2017: CB 67- 71 (“Notification Decision”).
On 28 August 2017, having received no communication or application for reinstatement, the Tribunal Decision affirmed the Notification Decision, that is the decision to dismiss the application in accordance with s.426A of the Migration Act, and provided the following statement of reasons (see CB 75):
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 10 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.
Judicial Review Application
On 11 September 2017 the applicant lodged a Judicial Review Application in this Court on the following grounds:
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.
Accompanying the applicant’s Judicial Review Application was an affidavit (“Applicant’s Affidavit”) affirmed on 11 September 2017 in which the applicant affirmed:
1. The muslim people do not respect Chinese and are very racists
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 11 October 2017 a Registrar of this Court made an order allowing the applicant to file any amended Judicial Review Application, further supporting affidavits and a written outline of submissions prior to the hearing, and listed the matter for final hearing on 22 December 2017 (“Registrar’s Orders”). The applicant did not avail herself of this opportunity, however, on 20 December 2017 the applicant phoned the Court seeking that the hearing of the matter be adjourned to another date. No consent orders to adjourn the hearing were provided to the Court, nor was any Application in a Case seeking an adjournment lodged by the applicant, and the matter proceeded to hearing on 22 December 2017, and the applicant appeared, together with a Court-provided interpreter.
At hearing the applicant made an oral application for an adjournment. The grounds for seeking the adjournment were that “she thinks” she may be leaving Australia for a short period of time though she had not yet made a decision, and she did not want to miss the hearing. It was unclear to the Court what the applicant was seeking to submit as her grounds for an adjournment, and when asked what the relevance of leaving Australia was to the present hearing she merely stated she came as “If I don’t come and then it may be an act of contempt.”
For reasons set out hereunder: see [15]-[20] below, the applicant’s adjournment application was dismissed at hearing. Upon dismissal of the adjournment application the applicant chose not to make any submissions in support of the Judicial Review Application, and asked the Court to “just tell her what the decision was”.
Ministers submissions
At hearing the Minister opposed any application for an adjournment of the hearing to another date and sought the Judicial Review Application be dismissed with costs on the following grounds:
a)as to ground one:
i)it is no more than a bare assertion that the Tribunal Decision is affected by jurisdictional error and the applicant has misunderstood the basis on which the Tribunal dismissed the application for review; and
ii)the Tribunal dismissed the application on the basis the applicant did not appear at the scheduled Tribunal hearing and subsequently failed to apply for reinstatement of the application in the time provided, thus the Tribunal made no findings in relation to the merits of the applicant’s review application,
and the first ground cannot therefore succeed;
b)as to ground two:
i)it is not particularised so as to make it meaningful and constitutes no more than an assertion that the Tribunal dealt with her matter unfairly;
ii)it has been held that a failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration & Border Protection [2014] FCCA 612 at [60] per Judge Lucev, upheld in WZATH v Minister for Immigration & Border Protection [2014] FCA 969 (“WZATH-Federal Court”);
c)if ground two is construed as an assertion that the Tribunal acted in a procedurally unfair manner, the Tribunal did not breach any of the procedural fairness requirements in dismissing the application pursuant to s.426A(1A)(b) of the Migration Act because:
i)there was compliance with ss.425 and 425A of the Migration Act regarding the Tribunal hearing invitation;
ii)all written statements and notifications are in compliance with ss.426B and 430A of the Migration Act; and
iii)pursuant to s.426A(1E) of the Migration Act, the applicant having failed to make an application for reinstatement within the specified 14 day period, the confirmation decision made by the Tribunal (that is, the Tribunal Decision) was the necessary consequence of the applicant’s failure to seek reinstatement of her review application; and
d)this Court has considered and dismissed other judicial review applications of a similar nature in recent times, and the circumstances of this case are analogous to those: DUL17 v Minister for Immigration [2017] FCCA 2878; DWX17 v Minister for Immigration [2017] FCCA 3210.
The Minister considered the further statements in the Applicant’s Affidavit as submissions in support of the grounds of review, and submitted that they constituted a request for impermissible merits review. For the sake of completeness the Court will address these further statements as “Further Grounds of Review”: see [32]-[33] below.
Consideration
Application for adjournment
At hearing the Court delivered an extemporaneous judgment refusing the applicant’s adjournment application. The Court has reproduced the extemporaneous reasons hereunder, subject to some minor revisions and the addition of some further authorities.
In making the decision upon the adjournment application, the Court notes that it has a broad discretion in relation to whether or not it adjourns: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev. The primary consideration remains the interests of the administration of justice, and the Court also takes into account issues associated with case management and wastage of public resources, and refers generally to the principles set out by the High Court in that regard in Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“Aon Risk Services”), and notes that those principles have been adopted by this Court, in the migration area, on a number of occasions, including recently, for example, in CVA17 v Minister for Immigration & Anor [2017] FCCA 3208 at [13] per Judge Lucev; BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly (“BHG16”). Were this matter to be adjourned, it would be very difficult to find another hearing date within a reasonable period of time. The Court notes that there would be wastage of public resources by having to have the Court reconvene, and have the Minister’s lawyers and another interpreter reappear, at any reconvened hearing: see BHG16 at [28] per Judge A Kelly.
The Court also notes that the applicant has not filed any written submissions in accordance with the Registrar’s Orders, and that the merit of the Judicial Review Application is, it appears, very weak in circumstances where the applicant did not appear before the Tribunal, and the Tribunal appears, at least on the face of it, to have complied with all of the necessary requirements in the Migration Act when making the Notification Decision and Tribunal Decision.
Finally, the Court notes that the applicant’s stated reason for seeking the adjournment, that is, that she may be leaving Australia, is of no relevance to a hearing listed on 22 December 2017 for final hearing of her Judicial Review Application, which was so listed by a Registrar of this Court more than two months ago: see [10] above.
Although the Court has not heard from the Minister’s lawyer with respect to the reasons for the Minister opposing the adjournment application, the Minister does oppose the adjournment application. In the circumstances that the Court has already outlined, it was unnecessary to hear further from the Minister’s lawyer.
For the above reasons, the application for adjournment was refused at hearing, and the Court proceeded to hear the substance of the Judicial Review Application.
Jurisdictional error required
The Tribunal Decision 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 Migration Act: 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. 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.
Dismissal for non-appearance
In relation to the Tribunal’s processes for inviting the applicant to the Tribunal hearing on 10 August 2017 the Court notes:
a)the applicant provided an email address on the Tribunal review application, the same email address having been cited on the original application for the Protection Visa where the applicant expressly consented to receiving communication by electronic means: CB 14 and 52;
b)by email dated 14 July 2017 (“Invitation”) the Tribunal invited the applicant to attend the Tribunal hearing scheduled on 10 August 2017;
c)the Invitation complied with the requirements of ss.425 and 425A of the Migration Act;
d)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;
e)the Invitation satisfied 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 (Cth); and
f)the Tribunal attempted to call the applicant’s nominated mobile number when she did not appear, and the call went unanswered.
Following the Tribunal hearing on 10 August 2017, the Tribunal complied with its obligations under s.426B(2) of the Migration Act, namely:
a)making a written statement of its decision and reasons for decision (the Notification Decision) and giving a copy to the applicant as required by s.426B(5) of the Migration Act;
b)pursuant to s.426B(5)(a) of the Migration Act, the Notification Decision, being the written statement under s.426B(2) of the Migration Act, was given to the applicant within 14 days after the day on which the Notification Decision was made, specifically on the same date it was made, being 10 August 2017;
c)as required by s.426B(5)(b) of the Migration Act, the Notification 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 Notification Decision at the end of the day on which the document was transmitted, that being 10 August 2017;
e)the Tribunal correctly advised the applicant that she could apply to the Tribunal, in writing, for reinstatement of the Protection Visa application by 24 August 2017 (14 days after receiving the Notification 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.
The Tribunal has the discretion to dismiss an application for non-appearance, though the Court must still consider whether it is a reasonable exercise of the discretion to do so, and in particular, whether there is anything which might have suggested that the applicant would attend any adjourned Tribunal hearing: MZALO v Minister for Immigration & Border Protection [2016] FCA 1339; (2016) 70 AAR 495 at [22]-[28] per Mortimer J. When the Tribunal attempted to contact the applicant via the nominated mobile telephone number the call went unanswered. The Tribunal exercised ‘elementary common sense’ when attempting to contact the appellant on her failure to appear, and although unsuccessful in reaching the applicant the attempt is sufficient to ensure the Tribunal did not act capriciously or unreasonably, or commit a jurisdictional error: AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383; (2015) 244 FCR 144; (2015) 68 AAR 71 at [26] per North ACJ; DWW17 v Minister for Immigration & Anor [2017] FCCA 2309 at [16] per Judge Lucev.
There was no evidence before the Tribunal, and there is none now before the Court, pointing to anything potentially being amiss when the applicant failed to attend the Tribunal hearing as she had not responded to any emails from the Tribunal, nor had she sent any correspondence to the Tribunal to suggest she was pursuing her Protection Visa application closely, or anything indicative of some mistake by the applicant in not attending the Tribunal hearing. The Notification Decision expressly stated the Tribunal was satisfied the applicant was properly invited to the hearing in accordance with s.441A(5) of the Migration Act. Further, there was nothing to suggest the applicant may have attended an adjourned Tribunal hearing.
The Court finds that:
a)the applicant was validly invited to attend the Tribunal hearing under s.425 of the Migration Act and failed to appear, and it was thus open to the Tribunal to exercise its discretion under s.426A(1A)(b) of the Migration Act to dismiss the application without any further consideration of the application or information before it: 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”);
b)given the Invitation complied with the requirements of s.425A of the Migration Act, and further, that the applicant is deemed to have received the Invitation irrespective of whether the applicant in fact did or did not receive it and did or did not read and understand it: VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134; (2004) 136 FCR 407 at [14] per Sundberg and Hely JJ, the Tribunal was under no further obligation to confirm if the applicant would attend the scheduled hearing: Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 150 FCR 439; 231 ALR 630 at [39] per Spender, French and Cowdroy JJ (“SZFHC”); and
c)the Tribunal complied with its statutory obligations under s.426B of the Migration Act and the applicant failed to apply for reinstatement of the Protection Visa application. The Tribunal was therefore obliged, under s.426A(1E) of the Migration Act, to confirm the Notification 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,
and there was, therefore, no jurisdictional error in the Tribunal Decision dismissing the applicant’s review application by reason of her non-appearance before the Tribunal.
Ground 1
The Tribunal did not consider the applicant’s claims and did not apply the real chance test because it did not have to do so, because it dismissed the review application under s.426B of the Migration Act. Section 426B of the Migration Act allowed the Tribunal to dismiss the applicant’s review application without any further consideration on the basis that the applicant failed to appear, there being no need to consider the merits of any claims raised by the applicant relating to her Protection Visa application. Having concluded that the Tribunal committed no jurisdictional error in making the Tribunal Decision by applying s.426B of the Migration Act: see [22]-[26] above, that being a course reasonably open to the Tribunal in the circumstances, it follows that ground 1 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 2
The applicant was provided with an opportunity, pursuant to the Registrar’s Orders, to provide further particulars for each ground of judicial review and failed to do so.
As ground 2 is unparticularised it can be dismissed for want of particulars, and on this basis alone the Court considers that ground 2 must be dismissed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; WZATH-Federal Court; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J.
In any event, the Court refers to the discussion at [22]-[26] above on the Tribunal Decision to dismiss the review application for non-appearance, and the Court finds that, insofar as the applicant may be claiming that the Tribunal Decision was affected by procedural unfairness, no such claim is made out. The Tribunal satisfied each of the statutory requirements when exercising the discretion to dismiss the application under s.426A of the Migration Act, and further was obliged by s.426A(1E) of the Migration Act to affirm the Notification Decision to dismiss the application for non-appearance: CJU16 affirmed on appeal in CJU16 Appeal.
Ground 2 of the application is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Further Grounds of Review
The Court does not have jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for a Protection 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; 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. The Further Grounds of Review clearly invite this Court to undertake impermissible merits review of the Tribunal Decision, and the Further Grounds of Review therefore do not assert or make out any jurisdictional error in the Tribunal Decision.
Accordingly, the Court finds no jurisdictional error in the Tribunal Decision by reason of the Further Grounds of Review.
Conclusion and Orders
The Court has concluded that:
a)the applicant’s oral application for adjournment must be dismissed; and
b)there is no jurisdictional error established in the Tribunal Decision, and therefore the Judicial Review Application must be dismissed.
It was for the above reasons that on 22 December 2017 the Court made the orders set out at [1] above.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 11 January 2018
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