EBS17 v Minister for Immigration and Anor
[2020] FCCA 1258
•3 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBS17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1258 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decisions – dismissal of application for non appearance and confirmation of that decision – whether the Tribunal should have adjourned the review considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 425A, 426, 426A, 426B, 427, 477, 441 Migration Regulations 1994 (Cth) |
| Cases cited: AYT16 v Minister for Immigration (2017) 71 AAR 491 AZAFB v Minister for Immigration [2015] FCA 1383 CDZ18 v Minister for Home Affairs [2019] FCCA 462 Kaur v Minister for Immigration (2014) 236 FCR 393 Minister for Immigration v Eden (2016) 240 FCR 158 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v SZFHC (2006) 150 FCR 439 Minister for Immigration v SZVFW (2018) 264 CLR 541 |
| Applicant: | EBS17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2817 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia by telephone |
| Solicitors for the Applicant: | Vinh Duong & Associates |
| Solicitors for the Respondents: | Ms C Juarez of Minter Ellison by telephone |
ORDERS
The application as amended on 15 May 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2817 of 2017
| EBS17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of two decisions made by the Administrative Appeals Tribunal (Tribunal). The first decision made on 27 July 2017 was a non appearance decision in which the application was dismissed under s.426A(1A)(b) of the Migration Act 1958 (Cth) (Migration Act). The second decision was a confirmation decision made on 15 August 2017.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Malaysia, who arrived in Australia on 2 December 2016,[1] the holder of an Electronic Travel Authority (Class UD) (subclass 601) visa. He applied for a protection visa on 27 February 2017, claiming to fear harm from a creditor in Malaysia because he had not repaid a loan.[2]
[1] Court Book (CB) 21
[2] CB 1, 32–34
The applicant said he feared that, if he returned to Malaysia, he might be killed, his creditor would hurt his family and the authorities would not be able to protect him.
On 8 March 2017, the applicant attended an interview with the Minister’s Department in Sydney to provide his personal identifiers.
On 21 March 2017, the Minister’s delegate (delegate) found that the applicant did not meet the criteria set out in s.36 of the Migration Act and refused his application for a protection visa.[3]
[3] CB 61
The delegate accepted the applicant’s claimed identity and, on the basis of country information, accepted that illegal money lending or loan sharking, known as “Ah Long” is widespread in Malaysia and that Ah Long syndicates engage in harassment and extortion of their victims. However the delegate found that the applicant would receive effective protection from the Royal Malaysian Police and the judiciary.[4]
[4] CB 67
On 27 March 2017 the applicant applied to the Tribunal for review of the delegate's decision.[5] In that application, the applicant provided an email address for correspondence (the email address).[6] The applicant also provided a street address but no telephone number.[7]
[5] CB 61, 74
[6] CB 75
[7] CB 75; he had provided a telephone number in his visa application
By letter dated 3 July 2017, the Tribunal invited the applicant to attend a hearing, scheduled for 27 July 2017.[8] That invitation was sent by email to the email address on the same day.[9]
[8] CB 85
[9] CB 84
The applicant did not reply to the hearing invitation, nor did he attend the hearing.[10]
[10] CB 94
On 27 July 2017, the Tribunal dismissed the application for non appearance at the hearing, pursuant to s.426A(1A)(b) of the Migration Act.[11]
[11] CB 101
By letter dated 27 July 2017, the Tribunal notified the applicant of the dismissal decision, which was sent by email to the email address on the same day.[12] That letter stated that the applicant “may apply to us, in writing, for reinstatement of the application by 10 August 2017” and explained what information needed to be provided in applying for reinstatement.[13] The letter was accompanied by an information sheet containing information about the dismissal of applications and which reiterated the reinstatement process.[14]
[12] CB 98, 97
[13] CB 98
[14] CB 99
The applicant did not apply for reinstatement of the application. Accordingly, on 15 August 2017, the Tribunal confirmed the decision to dismiss the application because the applicant did not apply for reinstatement within the 14 day period.[15]
[15] CB 106
By the making of the confirmation decision, the Tribunal is taken under s.426(1F) of the Migration Act to have affirmed the delegate’s decision not to grant the applicant a protection visa.
Relevant statutory provisions
As presently relevant, s.426A of the Migration Act provides as follows:
Scope
(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)… ; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
…
(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.
(1F)If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
…
Other measures to deal with failure of applicant to appear
(2)This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
The current proceedings
These proceedings began with a show cause application filed on 12 September 2017. The applicant only sought at that time to review the confirmation decision. The matter was initially docketed to Judge Barnes and listed for a callover on 12 March 2019. On that day, the matter was transferred to my docket. On 15 May 2020 an amended application was filed which sought both leave and an extension of time under s.477(2) of the Migration Act to permit the Court to review the non appearance decision of the Tribunal. This was not opposed by the Minister and I made the orders sought. The single ground in the application as thus amended is:
1. The Tribunal’s failure to consider exercising its discretion, under paragraph 427(1)(b) (read with subsection 426A(2)) of the Act, to adjourn the review, or exercise of discretion not to adjourn the review, was legally unreasonable.
In addition to the court book filed on 13 November 2017, I have before me as evidence an affidavit made by the applicant on 18 May 2020. I received that affidavit subject to relevance in circumstances where the Minister initially opposed its receipt but subsequently withdrew that objection. The affidavit is relevant, both to gain an understanding of the extent to which the applicant engaged with communications from the Tribunal and in order to gain some understanding of what opportunity the applicant lost by reason of the Tribunal decisions.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial of this matter on 20 May 2020. I have been assisted by those submissions.
Consideration
The only ground of review is the contention that the Tribunal acted unreasonably in failing to adjourn the review or to consider doing so.
The applicant contends that in Minister for Immigration v SZVFW,[16] the High Court confirmed that the Tribunal’s discretion under s.426A of the Migration Act is subject to the requirement of “legal reasonableness”.
[16] (2018) 264 CLR 541
Their Honours Nettle and Gordon JJ stated:[17]
[17] SZVFW at [80]-[84]
Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.
How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. The abuse of statutory power is not limited to a decision affected by specific errors which bring about an improper exercise of power because, for example, the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration; or exercised the power in bad faith, or for a purpose other than a purpose for which it was conferred; or exercised the power in such a way that the result of the exercise of power is uncertain.
Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no "evident and intelligible justification" for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, "[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'".
…
Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.
Section 426A(2) of the Migration Act expressly reserves to the Tribunal the discretion to adjourn the review under s.427(1)(b) rather than proceed to make a decision under s.426A(1A)(b). However in the present case the Tribunal is said to have either failed to consider exercising its discretion to adjourn the review or exercised that discretion adversely to the applicant, deciding not to adjourn the review and proceed to made a decision under s.426A(1A)(b) of the Migration Act. The applicant submits that on either factual scenario the Tribunal exceeded the bounds of legal reasonableness. The statement of reasons for the non appearance decision made no reference to the issue of adjournment. The present is said not to be a case where the Tribunal’s statement of reasons demonstrated a justification for the Tribunal’s exercise of discretion under s.427(1)(b).
The Minister contends that the Tribunal complied with s.425 of the Migration Act and that its non exercise of its discretion under s.426A(1A)(b) was not legally unreasonable.
The Minister submits that the Tribunal's invitation to hearing letter dated 3 July 2017 complied with s.425 of the Migration Act because it:[18]
a)contained an invitation to the applicant to appear before it to give evidence and present arguments as required by s.425(1) and s.425(1)(a);
b)notified the applicant that he could give the Tribunal written notice to obtain oral evidence from a person or persons as required by s.426(1)(b) and s.426(2);
c)notified the applicant of the specified day, time and place of the hearing as required by s.425A(1);
d)was given to the applicant by transmission to the last email address provided to the Tribunal in connection with the review, being an approved method for the giving of a document under s.441A(5)(d) as required by s.425A(2)(a);
e)complied with s.425A(3) by providing the applicant with 24 days notice, more than was required the period prescribed in regulation 4.35D of the Migration Regulations 1994 (Cth); and
f)complied with s.425A(4) by containing a statement to the effect of s.426A about the options available to the Tribunal if the applicant failed to appear.
[18] CB 85
Having validly invited the applicant to a hearing, the Minister submits that the Tribunal was under no obligation to take further steps to attempt to notify the applicant of the hearing.[19] In these circumstances, it is said to have been open to the Tribunal to exercise its discretion to proceed under s.426A(1A)(b) of the Migration Act.
[19] Minister for Immigration v SZFHC (2006) 150 FCR 439 at [39] per Spender, French and Cowdroy JJ
Legal reasonableness
The discretion to proceed under s.426A(1A)(b), enlivened by non attendance at a hearing, is one that must be exercised reasonably.[20]
[20] Minister for Immigration v Li (2013) 249 CLR 332 at [63] per Hayne, Kiefel and Bell JJ; SZVFW at [4] per Kiefel CJ
The question of whether a Tribunal exercised its discretion reasonably is fact specific.[21] In the circumstances of this matter, I accept that the Tribunal's decision to proceed under s.426A(1A)(b) fell within the range of possible, acceptable outcomes that are defensible in respect of the facts and law, having regard to the following factors:
a)the Tribunal validly invited the applicant to the hearing and put him on notice of the consequences of non attendance (as set out above);
b)the invitation to hearing was sent to the email address, being the applicant's last known email address, as provided in his application for review;
c)the dismissal decision (and its accompanying documents) complied with the requirements of s.426B of the Migration Act and the applicant was properly notified by email to the last email address provided to the Tribunal in connection with the review, being an approved method under s.441A(5)(d); and
d)the applicant was on notice of his right to apply for reinstatement but did not do so.
[21] Minister for Immigration v Eden (2016) 240 FCR 158 at [63] per Allsop CJ, Griffiths and Wigney JJ; SZVFW at [84] per Nettle and Gordon JJ
Further, as the Minister notes, the applicant had not communicated with the Tribunal or provided any documentation during the course of the review. Accordingly, his non appearance was not “out of character” nor was it a departure from a “pattern of conduct” established such that the decision of the Tribunal not to attempt to contact the applicant following the scheduled appearance was “inexplicable” and thus unreasonable.[22]
[22] cf. Kaur v Minister for Immigration (2014) 236 FCR 393 at [95]–[96] per Mortimer J; cf. AZAFB v Minister for Immigration [2015] FCA 1383 at [24] per North ACJ
In circumstances where the applicant did not provide a telephone number in connection with the review, the Tribunal cannot, in my view, be found to have acted unreasonably in not attempting to contact the applicant by telephone.[23]
[23] cf. AZAFB
I find that the Tribunal's reasons for proceeding as it did, disclose an evident and intelligible justification.[24]
[24] Li at [76] per Hayne, Kiefel and Bell JJ; see also, for e.g. CDZ18 v Minister for Home Affairs [2019] FCCA 462 at [20]–[21] per Judge Dowdy
The confirmation decision
Subsection 426A(1E) of the Migration Act provides that, if there is no application for reinstatement of an application within the 14 day period prescribed by s.426A(1B), the Tribunal must confirm the decision.[25] As the applicant did not apply for reinstatement, the Tribunal was correct to find that it was obliged to confirm the dismissal decision and no error arises from the confirmation decision.
[25] AYT16 v Minister for Immigration (2017) 71 AAR 491 at [9]–[10] per Perram J
This matter can readily be distinguished from cases such as Li in that there was no request for an adjournment and neither was the Tribunal on notice that an adjournment might reasonably be required. This was a case where the applicant had simply not engaged in the review process other than lodging an application for review. In that application[26] the applicant nominated a street address for correspondence as well as an email address. The Tribunal used the email address to communicate with the applicant. The applicant acknowledges in his affidavit that he received some email correspondence, presumably from the Tribunal, but states that he could not understand them. The applicant states that he was advised to get legal assistance. I find, on the balance of probabilities that the applicant received the email correspondence sent to him by the Tribunal inviting him to a hearing and informing him of the non appearance decision.
[26] CB 75
The applicant contends that the Tribunal should have attempted to call him by telephone with the assistance of the interpreter booked for his hearing. There are two answers to that proposition. The first is that the applicant had not nominated a telephone number in his review application on which he wished to be contacted. The second is that the Tribunal did send two SMS reminders to the applicant prior to the scheduled hearing, presumably to the telephone number nominated by the applicant in his visa application.[27]
[27] CB 17
On the limited material before me, I am unwilling to conclude that the Tribunal failed to consider adjourning the review. On the limited material before the Tribunal, it was not unreasonable for the Tribunal not to adjourn the review, given the lack of engagement by the applicant with the review process and his claims for protection which had been considered and determined by the delegate. The applicant complains that there was no interview before the delegate, which raised the importance of a hearing before the Tribunal. In my view, that is a hypothetical proposition. The applicant was given a fair opportunity to attend a hearing and failed to attend. It was open to the Tribunal to proceed thereafter in the manner it did.
I note in passing that at CB 95 the hearing record of the Tribunal contains the handwritten notes, “9am 9.15am 10.48am”. There was a suggestion in oral argument that these were occasions upon which the Tribunal attempted to contact the applicant by telephone on the day of his hearing but there is no evidence upon which I could safely conclude that. I am willing to accept that those stated times suggest some effort or enquiry by Tribunal staff to determine whether the applicant was present for the hearing.
Conclusion
The applicant has been unable to establish that either decision by the Tribunal is affected by any jurisdictional error. The decisions are therefore privative clause decisions and the application must be dismissed.
I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 June 2020
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