Egb18 v Minister for Immigration

[2019] FCCA 2670

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGB18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2670

Catchwords:
MIGRATION – Applicant seeking reinstatement – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 426A(1A)(b), 426A(1E).

Applicant: EGB18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 430 of 2018

Judgment of: Judge McNab

Hearing date: 13 September 2019

Date of Last Submission: 13 September 2019

Delivered at: Perth

Delivered on: 13 September 2019

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Ms E Tattersall

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The Application filed 16 August 2018 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00.

4. The time for lodging any appeal be extended until 28 days after the publication of these written reasons.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 430 of 2018

EGB18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. On 16 August 2018, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), dated 1 August 2018. That decision confirmed a decision of the delegate (‘Delegate’) of the Minister to refuse to grant the visa.

2. The application was dismissed because the applicant had failed to appear before the Tribunal after having been invited to do so.

3. The Tribunal’s decision is brief and the substance of the decision is set out at [6] to [10].

4. The grounds of the application before this Court are that:

   a)the applicant seeks reinstatement of the application; and

   b)the applicant wishes Dr Colin Huntly, the decision-maker, to consider reinstating the application because the applicant was not aware of the date by which to lodge the application because the applicant had been unable to log into his old email since from June 2018 until recently.

Consideration

1. There are no proper grounds set out by the applicant in relation to a claim for review, and there is no error in the Tribunal’s decision, whether jurisdictional or otherwise.

2. On 28 March 2018, the Tribunal invited the applicant to attend a hearing before it which was scheduled for 22 May 2018. The invitation was sent to the email address nominated by the applicant in his application to the Tribunal.

3. The invitation requested that the applicant complete and return a response to hearing form and advised him that if he did not attend the scheduled hearing, the Tribunal may dismiss the application for review without further consideration of the application or the information before it.

4. On 8 May 2018, the hearing was rescheduled to 17 July 2018 and an invitation was sent to the applicant’s nominated email address. As recorded in the Tribunal’s decision, the applicant failed to appear at the hearing on 17 July 2018. Subsequently, the Tribunal dismissed the application for non-appearance. It did so in accordance with section 426A(1A)(b) of the Migration Act 1958 (Cth) (‘the Act’).

5. On the same day, the Tribunal wrote to the applicant at his nominated email address advising him of its decision and informing him that he had until 31 July 2018 to apply for reinstatement.

6. No response was received from the applicant. In those circumstances, the Tribunal was required to confirm the decision to dismiss the application pursuant to section 426A(1E) of the Act. That section provides that:

   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.

7. The Tribunal has complied with its procedural fairness obligations and acted in accordance with the provisions of the Act.

8. For these reasons, the Court is of the view that there is no error in the decision of the Tribunal. In those circumstances, the Court will dismiss the application.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 23 September 2019