Eeh21 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2023] FedCFamC2G 1156

•

10 November 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EEH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1156   

File number(s): SYG 2132 of 2021
Judgment of: JUDGE D HUMPHREYS
Date of judgment: 10 November 2023
Catchwords:  MIGRATION – Administrative Appeals Tribunal – Protection Visa – Review of a Registrars decision – Whether the Tribunal fairly considered all the Applicants claims – Whether the Tribunal fell into jurisdictional error – no jurisdictional error is made out – the application is dismissed.
Legislation:

 Migration Act 1958 (Cth) s 426, 441,

 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13

Cases cited:
Division: Division 2 General Federal Law
Number of paragraphs: 27
Date of last submission/s: 10 November 2023
Date of hearing: 10 November 2023
Place: Parramatta
Counsel for the Applicant: The Applicant appeared in person.
Counsel for the Respondents: Ms Meaney appeared on behalf of the First Respondent.

ORDERS

SYG 2132 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

EEH21

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE D HUMPHREYS

DATE OF ORDER:

10 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The Application for a Review of the Registrar’s Decision is dismissed.

2.The Applicant is to pay the First Respondents costs, fixed in the amount of $500.00.

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
(As revised from the transcript)

JUDGE D HUMPREYS

INTRODUCTION

  1. The applicant is a female citizen of China.  The applicant first arrived in Australia 17 February 2019 as the holder of a Visitor’s visa. 

  2. On 28 February 2019, the applicant applied for a Protection visa.  The applicant claimed to fear harm from Chinese authorities due to her membership of an underground Christian church.  The applicant did not appoint a representative or an authorised recipient and gave a telephone number and an email address for the receipt of correspondence. 

  3. On 13 June 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant her visa.  The applicant sought merits review at the Administrative Appeals Tribunal.  The applicant nominated the same email address for the receipt of correspondence but did not provide a telephone number. 

  4. On 15 September 2021, the Tribunal emailed the applicant at her nominated email address informing her it proposed to schedule a remote hearing and requested that she provide a telephone number within seven days. 

  5. The Tribunal did not receive a response.  The Court notes that at that point in time, in September 2021, COVID19 restrictions were in place in terms of face-to-face hearings.

  6. The applicant was subsequently invited to attend a telephone hearing schedule for 2:00 pm on 15 October 2021,  by way of  a letter dated 27 September 2021, again sent to the applicant’s nominated email address.  The invitation asked the applicant to inform the Tribunal if she was not able to participate in the hearing and informed her that if she did not participate in the hearing, the Tribunal may dismiss the application without any further consideration of the application and the material contained within in.  The applicant failed to appear at the hearing scheduled on 15 October 2021.

  7. On 18 October 2021, the Tribunal proceeded under s 426A(1A)(b) of the Migration Act 1958 (Cth) (“the Act”), to dismiss the review application without further consideration of the information before it. A copy of the Tribunal’s non-appearance decision was sent by email to the applicant at her nominated email address at 9.18 am on 18 October 2021. The covering letter informed the applicant she could apply in writing for reinstatement by 1 November 2021, being 14 days from the date of the decision. An accompanying information sheet also informed the applicant that if she did not seek reinstatement within the 14-day period, then the Tribunal would be required to confirm its decision to dismiss the application. The applicant did not apply for reinstatement or otherwise contact the Tribunal after being notified of the non-appearance decision.

  8. On 2 November 2021, the Tribunal confirmed its decision to dismiss the application. The Tribunal found that the applicant was notified of the non-appearance decision and given a written statement setting out the reasons for the decision in accordance with s 426B(5) of the Act. 

  9. As the applicant did not apply for reinstatement of her application, the Tribunal found it was bound to confirm its decision.  The applicant then sought judicial review of the Tribunal’s decision in this Court.  In a response filed and served on the applicant on 21 November 2021, the applicant was expressly notified of the first respondent’s view that the application lacked reasonable prospects of success. 

  10. Despite an opportunity afforded by procedural orders made on 16 December 2021 for the applicant to file and serve any amended application by 17 March 2022, and written submissions 28 days before the hearing, that being 4 October 2023, the applicant failed to file and serve any further documents in support of her case.

  11. On 1 November 2023, a Registrar of this Court summarily dismissed the application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”), on the basis the application had no reasonable prospects of success.  The applicant then sought a review of the Registrar’s decision.  As required by the Rules, this matter has been listed as soon as reasonably practicable following the receipt of the Application for Review of a Registrar’s decision.

    THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

  12. The Tribunal decision is relatively short.  It correctly sets out the procedural history of the matter.  At paragraph 4 of the decision, the Tribunal notes that:

    [4] As the applicant did not apply for reinstatement of the application within the prescribed 14-day period, the Tribunal is required to confirm the decision to dismiss the application.

    GROUNDS OF JUDICIAL REVIEW

  13. The grounds of judicial review relied upon by the applicant are contained in an Initiating Application dated 12 November 2021.  They are as follows:

    Ground One

    Tribunal did not rely on given information to consider my claims correctly.

    Ground Two

    Tribunal shall give specific reasons in writing to dismiss my claims.

    Ground Three

    Tribunal did not consider possible risk of harm because of my religion after I return to China. 

    Ground Four

    There exists unfairness because my claims were not fairly treated.

    THE APPLICANT’S SUBMISSIONS

  14. The applicant appeared before the Court unrepresented.  She was assisted by an Interpreter.  At the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the relevant Court Book and that the first respondent’s written submissions were interpreted to her prior to the hearing commencing.

  15. The Court also ensured that the applicant had access to a pen and paper so she could take notes during the hearing should she so wish.  The Court carefully explained that it was undertaking judicial review, not merits review, and the difference between the two types of review.  The Court also explained the process by which the hearing would be conducted.  The Court again asked the applicant if she had any written submissions or other material that she wished to provide in support of her claim.  There was none.

  16. The applicant told the Court in oral submissions that she left China because it was impossible for her to continue to stay there.  Since arriving in Australia, she has been working.  The applicant told the Court that she has an ABN and that she has been paying tax.  The applicant fears that she may face harm if she is required to return to China.  The Court indicated to the applicant that these matters went to the merits of the matter, whereas the Court is restricted, on judicial review, to looking as to whether or not there is a legal error in the Tribunal’s decision.  Only if there is a legal error in the decision can the Court overturn the decision of the Tribunal. 

    THE FIRST RESPONDENT’S SUBMISSIONS

  17. On behalf of the first respondent, it was submitted that the applicant was validly invited to appear before the Tribunal, and there was no suggestion otherwise.  The Tribunal was correct to conclude that the hearing invitation met the relevant statutory requirements and that the applicant had failed to appear before the Tribunal on the day at the scheduled time and place of the hearing. 

  18. The Tribunal provided an intelligible justification for proceeding under s 426A(1A)(b) of the Act when the applicant failed to appear. The exercise of discretion by the Tribunal in this regard was not unreasonable. The applicant was validly notified of a non-appearance decision but did not seek reinstatement within the prescribed time period. Consequently, the Tribunal was statutorily required by s 426A(1E) of the Act to make the confirmation of the dismissal decision.

  19. In terms of the grounds of judicial review, grounds one and three make related complaints that the Tribunal did not rely on the given information to consider her claims correctly or failed to consider the risk of harm the applicant would face because of her religion if she returned to China.  These grounds are misconceived, in that the Tribunal did not purport to consider her protection claims.  As the applicant did not appear at the scheduled hearing, and then failed within the requisite time period to seek reinstatement, the matter was dismissed without consideration of the applicant’s claims. 

  20. It was submitted that ground two is not a proper ground of judicial review but a mere statement that the:

    … Tribunal shall give specific reasons in writing to dismiss my claims.

  21. It was submitted that this ground does not identify any alleged legal error in the Tribunal’s non-appearance or confirmation decisions and is without merit. In any event, the Tribunal made a written statement of its reasons for its decision to dismiss the review application, together with written reasons for its decision to confer the dismissal of the review application. Both of these decisions were given to the applicant by one of the methods described in section 441A of the Act, that being by email to the last known address provided by the applicant.

  22. Ground four is a bland assertion that:

    There exists unfairness because my claims were not fairly treated.

  23. No particulars have been provided to explain how the Tribunal’s processes or approach resulted in any unfairness. In any event, the Tribunal complied with all relevant procedural fairness obligations under division 4, part 7 of the Act by inviting the applicant to attend the hearing and providing an intelligible justification for proceeding under s 426A(1A)(b) of the  Act when the applicant failed to appear.  It cannot be said that the exercise of the discretion was unreasonable or capricious.  The same can be said of her claim that she was not fairly treated.

    CONSIDERATION

  24. This matter involves a review of a Registrar’s decision.  Accordingly, the hearing is a de novo hearing, that is, a complete re-hearing of the matter.  The Court is satisfied that the applicant was properly invited to attend the Tribunal hearing but failed to appear.  The Court is further satisfied that the applicant was advised in an appropriate manner, as provided under the legislation, that unless she submitted a reinstatement application within 14 days, the Tribunal would be bound to confirm the decision to dismiss her application for review without considering it on its merits.  The Court is satisfied that the applicant failed to seek a reinstatement within the stipulated time, and accordingly, the Tribunal was bound to act in the manner that it did, which was to dismiss her application.

  25. The Court can detect no error in the procedural processes followed by the Tribunal.  The Court is satisfied that the applicant was properly advised, as required by the legislation, of the time, date and place of the initial Tribunal hearing.  The Court is satisfied that she was properly advised that as a consequence of her non-appearance, the matter would be dismissed, but there was a right to seek reinstatement within 14 days.  The Court is satisfied that the applicant was properly informed of her right to seek reinstatement but failed to do so.  In these circumstances, the Tribunal had no other option but to confirm the dismissal of the hearing.

  26. The applicant’s grounds of judicial review, insofar as they might be grounds of judicial review, are misconceived.  The Tribunal was entitled to dismiss the applicant’s matter without considering the merits of the application due to her failure to appear.  The Tribunal properly notified the applicant of a right to seek reinstatement, and when she did not do so, had no other choice but to dismiss her matter.  For the reasons advanced by the first respondent, none of the grounds of judicial review have any merit, in the Court’s view.  In these circumstances, the Court is satisfied that the proceeding has no reasonable prospects of success, and there is no “real or genuine dispute” that might reasonably resolve in the applicant’s favour.

    CONCLUSION

  27. Accordingly, in these circumstances, the Court confirms the decision of the Registrar to dismiss the matter summarily, pursuant to r 13.13(a) of the Rules. 

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       10 November 2023

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