Ebw21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1130
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EBW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1130
File number(s): SYG 2105 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 1 December 2023 Catchwords: MIGRATION – Review of summary dismissal decision by Registrar Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 136, 254, 256
Migration Act 1958 (Cth) ss 425A, 426A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.01, 21.02, 21.03, 21.04
Migration Regulations 1994 (Cth) reg 4.35D
Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
Bechara v Bates (2021) 388 ALR 414
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 21 July 2023 Date of hearing: On the papers Place: Determined in Chambers The Applicant: Unrepresented Solicitor for the Respondents: Ms G Ng, Australian Government Solicitor ORDERS
SYG 2105 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EBW21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application made on 10 June 2023 pursuant to r 21.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), seeking review of the decision of Registrar Carney made on 6 June 2023, is dismissed.
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 JUDGMENT
JUDGE GIVEN
Before me is an application for review of a decision by a Registrar of the Court made on
6 June 2023, summarily dismissing the applicant’s application for judicial review (review application).
At the time the Registrar ordered that the proceedings be summarily dismissed, he had power to do so pursuant to s 254(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act), read together with r 21.01, item 58 of Table 21.1 and r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The exercise of that power by the Registrar is reviewable under s 256 of the Court Act, in accordance with Div 21.2 of Part 21 of the Rules.
BACKGROUND
The applicant is a Chinese national who arrived in Australia on 12 October 2017, travelling on a FA 600 (Visitor visa) (Court Book (CB) 76).
On 22 November 2019, the applicant applied for a Class XA-866 Permanent Protection visa (visa) (CB 10). Attached to that application was a document outlining the circumstances in which she had left China and moved to Australia, and her claims for protection which primarily arose from the conduct of the county government and its officials towards the applicant and her family in 2017 (CB 32).
A delegate of the Minister refused to grant the visa to the applicant on 5 April 2019, finding that the applicant was not a person in respect of whom Australia has protection obligations (CB 76 to 83).
On 15 April 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB 84).
Tribunal’s decision
On 31 August 2021, the Tribunal invited the applicant to attend a hearing scheduled on 16 September 2021 (CB 94). Presumably, due to ongoing COVID-19 restrictions, that hearing was to be by telephone. On 16 September 2021, the Tribunal telephoned the applicant for the hearing (CB 106).
A handwritten record of that event records the following:
9.45am – no response
10:00am “”
> contacted interpreter
10.15am – picked up & then hung up
> contacted interpreter with update
10:30am – applicant answered
The next page of the hearing record includes a box which corresponds with the following statement “hearing adjourned to another day – further hearing to be arranged”. That box has been ticked (CB 108).
On 20 September 2021, the Tribunal emailed the applicant attaching a letter which relevantly said (CB 111):
On 31 August 2021 we sent a letter inviting you to attend a hearing on 16 September 2021 to give evidence and present arguments relating to the issues arising in your case.
Due to circumstances beyond our control the Member was unable to conduct the hearing on that day. We regret any inconvenience caused.
The letter referred to in the previous paragraph advised that the Tribunal hearing had been rescheduled to 11 October 2021 and invited the applicant to attend it by telephone. The rescheduled hearing was again to be conducted by telephone.
The hearing record document dated 11 October 2021 records that the applicant did not attend the Tribunal hearing on that day. The Tribunal attempted to contact the applicant four times (CB 123). A “case note” records the following (CB 128):
Hearing scheduled on the 11th 2021 at 10am
Attempted to contact [applicant’s name] for their hearing today at 10am, on the number the applicant provided [telephone number]
The attempts to contact were:
10:01 - Attempted contact on number provided - number rings out and proceeds to voicemail. The Member was present during this call.
10:05pm - Second attempt to contact applicant on number provided - number rings out and proceeds to voicemail.
10:15am - Third attempt to contact applicant on number provided - number rings out and proceeds to voicemail.
10:25am - Fourth and final attempt which was via MS Teams audio to contact PRA and still no answer - straight to voicemail. The member was present during this final call to the PRA.
Member advised no more attempts be made.
As per Members instructions a No Show was processed at 10:26am.
The Tribunal’s case notes also indicate that it provided the applicant with SMS hearing reminders on each of 9 September 2021, 15 September 2021, 1 October 2021 and 8 October 2021 (CB 127 to 128).
On 12 October 2021, the Tribunal made a decision on 12 October 2021 pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (Act) (non-appearance decision).
By its non-appearance decision the Tribunal said (CB 132):
The review applicant was invited under s 425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal by telephone on 11 October 2021. The applicant was advised that she would be contacted by telephone at the scheduled time.
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 Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
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), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. 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 applicant was informed of her right to seek reinstatement within 14 days (CB 130) by a letter sent under cover of email to a particular Gmail address given by her in connection with the review (CB 85) (Gmail address).
The applicant did not seek reinstatement in time, or at all. On 27 October 2021, the Tribunal notified the applicant of its decision confirm the decision to dismiss the application, pursuant to s 426A(1E) of the Act (CB 135) (confirmation decision).
In its decision of 27 October 2021, the Tribunal stated (CB 137):
….
2. On 12 October 2021 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.
APPLICATION TO THIS COURT
By an application to show cause filed with this Court on 10 November 2021, the applicant sought judicial review of the Tribunal’s non-appearance and confirmation decisions.
On 9 December 2021, a Registrar of this Court made orders by consent in Chambers including that the Minister file a Court Book by 20 January 2022 and granting the applicant leave to file any amended application on or by 3 March 2022. The first respondent filed a Response to the application on 7 December 2021, and a Court Book on 20 January 2022.
At a callover on 2 February 2023, a Registrar listed the application for a summary dismissal hearing, with orders made for written submissions to be filed by the applicant and first respondent in respect of that hearing.
The applicant did not file written submissions. The first respondent filed written submissions on 23 May 2023 as ordered.
On 6 June 2023, a Registrar summarily dismissed the application under r 13.13(a) of the Rules together with an order that the applicant pay the first respondent’s costs in the amount of $3,930 (dismissal Orders).
The review application made pursuant to r 21.03 of the Rules was filed on 10 June 2023, within the 7-day timeframe specified in r 21.02(1) of the Rules.
The applicant filed an Affidavit in support of the review application, which attaches the dismissal Orders and seeks the following orders:
1.Set aside the order made by Registrar Carney.
2.The decision made by the Tribunal should be quashed.
3.The applicant’s case should be remitted to the Tribunal for reconsideration.
On 20 June 2023, the review application was placed into my docket. On 28 June 2023, I made orders in Chambers which required that the parties elect whether the review application should proceed to an oral hearing (June Orders) or be determined on the papers. The June Orders required the respective parties to notify the Court of their preferences, by email to Chambers, by 4:00pm on 5 July 2023, and provided a timetable for the filing and service of written submissions.
The June Orders provided that in the event of no election being made, the parties would be taken to have consented to the review application being heard and determined in Chambers pursuant to, and for the purposes of, s 136(4)(b) of the Court Act. On 5 July 2023, the solicitors for the first respondent indicated by email, that the Minister consented to the application being heard and determined in Chambers. The applicant did not respond and therefore, did not make any election in accordance with the June Orders by 5 July 2023. Accordingly, and by reference to the terms of the June Orders, the applicant is taken to have consented to the Court determining the matter in Chambers, based on the material on the Court file.
Consideration
Pursuant to r 21.04 of the Rules, the proceeding before the Court requires it to consider the application for judicial review on a de novo basis: see Bechara v Bates (2021) 388 ALR 414 per Alsop CJ, and Markovic and Colvin JJ, and AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426.
The originating application filed on 10 November 2021 raised the following three substantive grounds of review, albeit the second ground was unnumbered:
1.The Tribunal has power to dismiss my application. But it shall consider all material related to my application.
Tribunal did not do it as required. So its action did not comply with Migration Act.
2.Tribunal did not consider my claims and did not give reasons to refuse my application for review.
An Affidavit made by the applicant on 3 November 2021 and filed in support of the originating review application repeats matter which go to her substantive protection claims (CB 7 to 9).
Section 426A of the Act relevantly provides the following:
Failure of applicant to appear before Tribunal
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) 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.
Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss 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.
Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
The combined effect of ss 426A(1A)(b) and (1E) of the Act is that, in circumstances where an applicant fails to attend the hearing, the Tribunal has power to dismiss review application without considering the substance of it.
The applicant was invited to two hearings before the Tribunal. I accept the submission of the Minister that each of invitations to those hearings complied with the requirements of the Act. Namely, each:
(a)provided a 14-day period of notice in accordance with s 425A(1) and reg 4.35D(3) of the Migration Regulations 1994 (Cth);[1] and
(b)were sent to the Gmail address provided by the applicant in connection with the review pursuant to ss 425A(2)(a) and 441A(5).
[1] This was despite the fact that in relation to the second hearing, the invitation was only required to be sent with a “reasonable period of notice”: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 at [82] per Spender, French and Cowdroy JJ.
The applicant can be taken to have attended the Tribunal hearing on 16 September 2021, despite the inability of the hearing to proceed for what seems to be a failure of technology (CB 106) (see [7] above). However, she failed to attend the rescheduled hearing on 11 October 2021 (CB 123).
As a result of that non-attendance, s 426A(1) of the Act was engaged because the applicant failed to appear at a scheduled hearing. The applicant was notified of the Tribunal’s decision on 12 October 2021, again by email to the Gmail address (CB 129 to 132) together with information about dismissal and reinstatement (CB 133 to 134).
The applicant did not seek reinstatement of the Tribunal’s non-appearance decision within the requisite 14-day period. Accordingly, the Tribunal was required to confirm the dismissal. On 27 October 2021, the Tribunal provided a written statement to that effect to the applicant, again by email to the applicant’s email address given for the purpose of the review (CB 136 to 138).
Each of the grounds in the judicial review application have the same essence. The applicant appears to not dispute the Tribunal’s power to dismiss for want of appearance. However, she takes issue with the fact that the Tribunal proceeded pursuant to s 426A(1A)(b), namely that it dismissed her application without any further substantive consideration of it.
Whether to proceed to dismiss for want of appearance was an election exclusively for the Tribunal to make and, in doing so, it was also entitled to elect as to whether to proceed under either ss 426A(1A)(a) or (b).
While it can be inferred from the applicant’s grounds of review that she would have preferred that the Tribunal had proceeding under s 426A(1A)(a) of the Act, there is no allegation (much less any material) to support a contention that the Tribunal failed to consider exercise of, or failed to exercise, that discretion reasonably. In fact, it may have been more advantageous to the applicant for the Tribunal to have proceeded as it did (by not substantively determining her application), lest case some misadventure had befallen her which might lead to a reinstatement application and enabled her later to appear to give evidence and present arguments in relation to her case. In any event, no such reinstatement was forthcoming.
I accept the submission of the Minister that the three grounds of review are misconceived and fail to identify any arguable jurisdictional error on the part of the Tribunal. The Tribunal did not make any decision about the substance of the applicant’s claims for protection for the reasons outlined above. As such, the grounds which allege otherwise are misconceived and there appears to be no arguable error in the manner in which the Tribunal proceeded.
CONCLUSION
I am of the view that there is no real question of fact or law in dispute in this matter which might realistically be resolved in the applicant’s favour if the matter were to proceed to a final hearing. The Tribunal was not only expressly permitted to dismiss the proceedings but, in relation to the confirmation decision, required by law to do so once the applicant failed to seek reinstatement.
In all of the circumstances of this case, I am satisfied that the Minister has established that the judicial review application lacks a reasonable prospect of success and should be summarily dismissed. In considering the application on a de novo basis, I have reached the same conclusion as did the Registrar. I would accede to the application that the proceedings be summarily dismissed pursuant to r 13.13 of the Rules.
Accordingly, the application seeking to set aside the orders made by the Registrar on 6 June 2023 should be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 1 December 2023
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