EOG17 v Minister for Immigration
[2018] FCCA 303
•9 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EOG17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 303 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – dismissal of visa review application for non-appearance before Tribunal – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.425, 425A, 426A, 426B, 430, 441A, 474, 476 |
| Cases cited: AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 |
| Applicant: | EOG17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 548 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 8 February 2018 |
| Date of Last Submission: | 8 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 9 February 2018 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr A Gerrard |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (as made on 8 February 2018)
Leave to the first respondent to file an amended outline of submissions in terms of the amended outline of submissions dated 7 February 2018 be granted and be treated as having been filed in Court.
The application be dismissed.
The applicant pay the first respondent’s costs in the sum of $7328.00 by 8 March 2018.
Formal written reasons for judgment be released from Chambers at a later date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 548 of 2017
| EOG17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 15 September 2017. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision is at Court Book (“CB”) 99-100.
Background prior to the Judicial Review Application
The background prior to the Judicial Review Application is as follows:
a)the applicant is a citizen of Malaysia who was born on 14 April 1977: CB 35;
b)on 26 August 2015 the applicant applied to the Department of Immigration & Border Protection (“Department”) for the Protection Visa: CB 1-32;
c)on 20 May 2016 the Delegate refused to grant the Protection Visa to the applicant: CB 41-58;
d)on 15 June 2016 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 60-62 (“Tribunal Review Application”);
e)by letter dated 2 August 2017 the applicant was invited to attend a hearing before the Tribunal on 31 August 2017: CB 72-73 (“Tribunal Hearing Invitation” and “Tribunal Hearing” respectively);
f)the applicant did not attend the Tribunal Hearing on 31 August 2017: CB 86-87 and 95; and
i)an attempt was made to contact the applicant by telephone at 11.10am on 31 August 2017 but the call was not answered: CB 85 and 95; and
ii)the Tribunal decided to dismiss the Tribunal Review Application under s.426A(1A)(b) of the Migration Act without further consideration of that application or the information before the Tribunal: CB 95 (“Non-Appearance Dismissal Decision”);
g)by letter dated 31 August 2017 the applicant was notified of the Non-Appearance Dismissal Decision by the Tribunal: CB 91. The letter attached a copy of the Tribunal’s statement of, and reasons for, the Non-Appearance Dismissal Decision. The letter also attached an information sheet about dismissal of applications and advised that the applicant could apply, in writing, for reinstatement of the Tribunal Review Application by 14 September 2017;
h)the applicant did not apply for reinstatement of the Tribunal Review Application within the 14 day deadline;
i)on 15 September 2017 the Tribunal Decision confirmed the Non-Appearance Dismissal Decision pursuant to s.426A(1E) of the Migration Act and the Tribunal Decision constituted the written statement of reasons required under s.430 of the Migration Act. The applicant was advised of the Tribunal Decision by letter dated 15 September 2017: CB 99-100; and
j)on 11 October 2017 the applicant filed the Judicial Review Application in this Court.
Non-Appearance Dismissal Decision
In the Non-Appearance Dismissal Decision, the Tribunal noted the following:
a)the applicant was invited under s.425 of the Migration Act to appear at the Tribunal Hearing on 31 August 2017 at 11am. The Tribunal Hearing Invitation stated that if the applicant did not attend the Tribunal Hearing, the Tribunal could dismiss the Tribunal Review Application without any further consideration of that application or information before it: CB 95 at [1];
b)the applicant did not appear at the Tribunal Hearing and the Tribunal was satisfied that the applicant was properly invited to the Tribunal Hearing in accordance with s.441A(5) of the Migration Act. When the applicant did not appear, a call was made to the applicant on his nominated mobile telephone number but the call was not answered. No satisfactory reason for the non-appearance was therefore given by the applicant: CB 95 at [2]; and
c)in the circumstances, the Tribunal decided to dismiss the Tribunal Review Application: CB 95 at [3].
Tribunal Decision
The Tribunal Decision at CB 99-100, is, in full, as follows:
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 May 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2. On 15 September 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.
The Judicial Review Application
The grounds as set out in the Judicial Review Application are as follows:
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.
(Transcribed verbatim).
In support of the Judicial Review Application the applicant filed an affidavit sworn 11 October 2017 (“Applicant’s Affidavit”) which deposes as follows:
1. Muslim people do not respect Chinese and 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
(Transcribed verbatim).
No particulars are provided in relation to any of these grounds or claims. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J.
On 22 November 2017 a Registrar of the Court made orders allowing the applicant to file and serve any amended Judicial Review Application giving complete particulars of each ground of review, and any affidavit containing any additional evidence upon which the applicant proposes to rely, by 21 December 2017, and written submissions by 21 days prior to hearing (“Registrar’s Orders”). The applicant has not filed any materials pursuant to the Registrar’s Orders.
When the matter was called at hearing there was no appearance for the applicant. The Deputy Associate to the presiding Judge then called the matter outside of the courtroom three times. There was still no appearance by the applicant. The Court indicated to Counsel for the Minister that:
a)the Court had read:
i)the Non-Appearance Dismissal Decision and the Tribunal Decision; and
ii)the Minister’s Submissions (and the Court notes that there were no submissions filed by the applicant); and
b)the Court was satisfied that the application should be dismissed, and the applicant pay the Minister’s costs, with formal written Reasons for Judgment to be published from Chambers at a later date.
Accordingly, orders were made and subsequently entered in the following terms:
1. Leave to the first respondent to file an amended outline of submissions in terms of the amended outline of submissions dated 7 February 2018 be granted and be treated as having been filed in Court.
2. The application be dismissed.
3. The applicant pay the first respondent’s costs in the sum of $7328.00 by 8 March 2018.
4. Formal written reasons for judgment be released from Chambers at a later date.
The formal written Reasons for Judgment are contained herein, and as the Court indicated to Counsel for the Minister at the hearing, largely reflect the Minister’s Submissions and the law as set out in an earlier decision of this Court involving a Tribunal review application dismissed for non-appearance, namely EBB17 v Minister for Immigration & Anor [2018] FCCA 48 (“EBB17”) delivered by this Court as presently constituted on 11 January 2018.
Consideration
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 The Commonwealth of Australia [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 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. Jurisdictional error may also arise by reason of a breach of the procedural fairness required by provisions of the Migration Act: 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 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
Issues
The issues that arise in respect of a judicial review of this Tribunal Decision are:
a)whether the applicant was correctly notified of the Tribunal Hearing and the Non-Appearance Dismissal Decision; and
b)whether the Tribunal Decision was legally reasonable: Li v Minister for Immigration & Anor [2017] FCCA 2326 at [25] per Judge Driver.
The grounds of review are therefore misguided, addressing the substantive claim for the Protection Visa which, for reasons set out below, was not addressed and which did not need to be addressed by the Tribunal by virtue of the applicant’s failure to appear at the Tribunal Hearing.
The Tribunal Hearing Invitation sent to the applicant by the Tribunal complied with s.425A of the Migration Act. In particular the Tribunal Hearing Invitation:
a)gave the applicant notice of the day on which, and the time and place at which, the Tribunal Hearing would take place;
b)was sent by email to the last email address provided by the applicant, being a method specified in s.441A of the Migration Act;
c)gave the applicant 29 days’ notice of the Tribunal Hearing; and
d)enclosed an “Information about hearings – MR Division” brochure which contained a statement to the effect of s.426A of the Migration Act: Li at [26] per Judge Driver.
Notification of the Non-Appearance Dismissal Decision complied with s.426B of the Migration Act. In particular it:
a)was sent:
i)within 14 days of the date of the Non-Appearance Dismissal Decision; and
ii)by email, being one of the prescribed methods;
b)advised the applicant that he could apply in writing for reinstatement of the Tribunal Review Application, and that any such application needed to be made within 14 days;
c)enclosed an “Information about dismissal of applications – MR Division” brochure which set out the effects of s.426B(1B)-(1F) of the Migration Act; and
d)enclosed a copy of the Non-Appearance Dismissal Decision.
In the above circumstances, the applicant was correctly notified of the Tribunal Hearing and the Non-Appearance Dismissal Decision.
The Court observes that:
a)the applicant was correctly notified of the Tribunal Hearing;
b)the Tribunal attempted to contact the applicant by mobile telephone, but the call went unanswered, and in the circumstances although the Tribunal was 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 & Border Protection & Anor [2015] FCA 1383; (2015) 244 FCR 144; (2015) 68 AAR 171 at [26] per North ACJ; EBB17 at [24] per Judge Lucev; and
c)the applicant was correctly notified of the Non-Appearance Dismissal Decision but did not apply for reinstatement of the Tribunal Review Application, or otherwise respond to the Tribunal.
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 Tribunal Review 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 Tribunal Hearing Invitation complied with the requirements of s.425A of the Migration Act, and further, that the applicant is deemed to have received the Tribunal Hearing 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 Tribunal Hearing: Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 150 FCR 439; (2006) 231 ALR 630 at [39] per Spender, French and Cowdroy JJ (“SZFHC”);
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 Tribunal Review Application. The Tribunal was therefore obliged, under s.426A(1E) of the Migration Act, to confirm the Non-Appearance Dismissal 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
d)the Tribunal Decision was open to the Tribunal on the material before it, and provided an evident and intelligible justification for the Tribunal Decision. The Tribunal Decision was therefore made reasonably in the sense identified in Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [68] per Hayne, Kiefel and Bell JJ.
In the circumstances there is no jurisdictional error in the Tribunal Decision dismissing the applicant’s review application by reason of his non-appearance before the Tribunal.
Conclusion and orders
The Court has concluded that the grounds of review do not establish jurisdictional error in the Tribunal Decision, and that no jurisdictional error is otherwise discernible in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed, and that the applicant must pay the Minister’s costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 9 February 2018
2
20
2