ETE17 v Minister for Immigration
[2018] FCCA 935
•26 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ETE17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 935 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – protection visa application – Malaysian citizen – non-attendance at hearing through alleged illness – whether denial of procedural fairness – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pt.7, Div.4, ss.422B, 425, 425A, 426A, 426B, 430, 441A, 441C, 441G, 474, 476, 477 Migration Regulations 1994 (Cth), reg.4.35D(3) |
| Cases cited: AYT16 v Minister for Immigration & Border Protection [2017] FCA 252; (2017) 71 AAR 491 MZALO v Minister for Immigration & Border Protection [2016] FCA 1339; (2016) 70 AAR 495 Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 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 |
| Applicant: | ETE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 567 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 8 March 2018 |
| Date of Last Submission: | 8 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 26 April 2018 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr PJ Corbould |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 567 of 2017
| ETE17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 23 October 2017 the applicant seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”).
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a Malaysian citizen who arrived in Australia on a valid visa on 19 August 2012 and upon expiry of that visa on 19 November 2012 remained in the country unlawfully: Court Book (“CB”) 43 and CB 72;
b)on 4 October 2016 the applicant applied for a Protection Visa on the following grounds:
i)he was opposed to Prime Minister Najib, whom he considers to be the cause of corruption in Malaysia: CB 41;
ii)in early February 2016 he helped friends to organise the “reveal Prime Minister Najib's real face” campaign, and therefore was threatened by the Malaysia Government: CB 41;
iii)on 26 February 2016, his friends came to “the city square” to protest and to circulate an open letter that many citizens read aloud, but Prime Minister Najib used the police to arrest many of the protesters: CB 41-42;
iv)on 14 March 2016, as a warning to other protesters, the police tied up the protesters with thin ropes and hung a small bulletin board with slandering words around their necks, loaded them onto several trucks and had fully armed police escort them to the city square to be paraded at a public gathering to announce their arrest: CB 42;
v)the police paraded protesters in the streets and the protesters shouted the facts about Prime Minister Najib, and the police then tried to stop the protesters shouting by tightening the ropes around their necks which cut into their flesh causing their necks to bleed: CB 42; and
vi)the applicant was in fear when he heard the news as he “was an important participant of the protest”, and he fears Prime Minister Najib will catch him if he returns to Malaysia: CB 42;
c)on 18 May 2016 a delegate of the first respondent (“Delegate”) refused to grant a Protection Visa to the applicant: CB 72-83 (“Delegate’s Decision”);
d)on 12 June 2016 the applicant applied to the Tribunal for review of the Delegate's Decision, the application authorising correspondence to be sent to the applicant’s migration agent in Auburn, New South Wales as authorised recipient, and disclosed the agent’s postal and email addresses and mobile telephone number, the latter address and the mobile phone number being the same as that disclosed for the applicant: CB 89-90;
e)an initial hearing before the Tribunal was cancelled by the Tribunal, and by letter dated 5 July 2017 the applicant was invited to attend a re-scheduled hearing before the Tribunal on 27 July 2017 (“First Tribunal Hearing”): CB 126-130;
f)the applicant attended the First Tribunal Hearing (which appears to have lasted no longer than 15 minutes) which was adjourned to another date: CB 131-133, and by letter dated 1 August 2017 the applicant was invited, via correspondence sent to the applicant’s migration agent’s email address (and therefore to his email address also: see [2(d)] above), to the resumed hearing on 6 September 2017 (“Invitation” and “Second Tribunal Hearing” respectively): CB 139-142;
g)the applicant was sent an SMS reminder on 30 August 2017 to the single mobile telephone number provided for both he and his migration agent, indicating that the Second Tribunal Hearing was on 6 September 2017 and to check the hearing Invitation to confirm the details: CB 143;
h)the applicant did not attend the Second Tribunal Hearing and:
i)a Tribunal officer spoke to the applicant’s migration agent representative who gave the Tribunal officer a new mobile telephone number for the applicant on which number the Tribunal officer tried to call the applicant but the number was unavailable: CB 144; and
ii)the Tribunal decided to dismiss the application under s.426A(1A)(b) of the Migration Act without further consideration of the application or the information before the Tribunal (“Dismissal Decision”): CB 145 and CB 152;
i)the applicant was notified of the Dismissal Decision by letter dated 6 September 2017 (“Dismissal Notification”) sent on that date by email to the applicant's migration agent's email address attaching a copy of the Dismissal Decision, together with an information sheet advising the applicant he could apply, in writing, for reinstatement of the application by 20 September 2017: CB 153-158; and
j)the applicant did not apply for reinstatement of the application, and on 21 September 2017 the Tribunal confirmed the Dismissal Decision pursuant to s.426A(1E) of the Migration Act (“Confirmation Decision”), and issued a written statement pursuant to s.430 of the Migration Act which was sent to the applicant by letter dated 26 September 2017, that letter again being sent to the applicant’s migration agent’s email address: CB 160-163.
It is pertinent to observe that at no stage was there any advice given to the Tribunal that the applicant’s migration agent’s email address, which was also the applicant’s provided email address, was not, or was no longer, the applicant’s email address.
Tribunal Decision
Dismissal Decision
The Dismissal Decision is as follows: CB 152:
1. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 6 September 2017 at 1:30pm. The invitation stated that if they 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 both five business days and again one business day before the scheduled hearing to the applicant's nominated telephone number.
2. 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) of the Act, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant was about the hearing. When the review applicant did not attend the hearing at the scheduled time and place, the Tribunal called the applicant's nominated telephone number. A person identifying themselves as the applicant's nominated contact person answered and stated that they were unaware that the review applicant had a hearing scheduled. This person called the Tribunal a short time later and advised that the review applicant had a new mobile telephone number. This number was called without success. No satisfactory reason for the applicant's non-appearance has been given at the time of this decision.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
Confirmation Decision
The Confirmation Decision is as follows: CB 161:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 May 2016 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2. On 6 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.
Judicial Review Application
On 23 October 2017 the applicant lodged his Judicial Review Application stating the following grounds:
I WAS UNABLE TO ATTEND AAT HEARING BECAUSE I WAS SICK, I HAD NO OTHER CHOICE. I HAVE BEEN IN VERY POOR HEALTH FOR A LONG TIME AND NEED TO SEE THE DOCTOR ON A REGULAR BASIS, I ALSO NEED TO TAKE MEDICINE TO ALLEVIATE THE PAIN AND SUFFERING. I DID NOT THINK THAT I FELT MY HEAD SPLITTING AND HAD TO STAY IN BED, UNTIL MY LANDLORD FOUND ME AND SENT TO THE HOSPITAL IMMEDIATELY AND I COULD PICK UP BACK TO LIFE. UNDER SUCH A SITUATION, I COULD NOT REMEMBER TO ATTEND AAT HEARING AND I ALSO COULD NOT INFORM AAT THAT I WAS ILL AND UNABLE TO ATTEND THE HEARING.
HOWEVER, AAT ONLY SENT ME AN EMAIL TO MY AUTHORISED RECIPIENT, THEY SHOULD CONFIRM AGAIN BEFORE THE HARING, BUT THEY DID NOT MAKE A PHONE CALL TO ASK ME ABOUT MY CASE AND MADE SUCH A DECISION. HOWEVER, AAT REJECTED ME SO QUICK AND IMMEDIATELY WITHOUT ASKING ME ANYTHING. AAT SHOULD CHECK THE SITUATION. SO, IT BREACHED THE PROVISIONS IN THE LAW. I SHOULD HAVE RIGHT TO COMMENT ON ANY ADVERSE VIEW. I WAS DENIED SUCH RIGHTS. I WAS NOT GIVEN OPPORTUNITY TO EXPLAIN ALL ASPECTS OF MY CASE. SO, THE TRIBUNAL'S DECISION BREACHED MY RIGHT TO NATURAL JUSTICE.
I BELIEVE AUSTRALIA IS A COUNTRY THAT WILL PROTECT THE INTERESTS OF DISADVANTAGED GROUPS, SO I FLED TO AUSTRALIA TO SEEK HELP. HOWEVER, I DID NOT THINK THAT AAT IS SO INDIFFERENT TO ME. AAT DID NOT CONSIDER MY PRACTICAL SITUATION AND TOOK IT FOR GRANTED THAT I COULD ATTEND THE HEA RING LIKE OTHERS, WHICH IS REALLY NOT HUMANE.
The applicant was afforded an opportunity by a Registrar of this Court to provide an amended Judicial Review Application, any further supporting affidavits and a written outline of submissions prior to the matter being heard on 8 March 2018. The applicant did not avail himself of this opportunity. Nonetheless the Court invited the applicant to make any oral submissions in support of the grounds of his Judicial Review Application. The applicant proceeded to tell the Court he is very fearful of returning to Malaysia and it will be dangerous for him to return. The Court explained to the applicant that he must make submissions addressing the alleged jurisdictional error in the Tribunal Decision, further explaining and providing examples of the types of matters which might constitute a jurisdictional error. The applicant frankly stated he had nothing to say about those things, and that he wanted to “reiterate his case”.
Minister’s submissions
The Minister made the following submissions:
a)the application is misconceived as it does not challenge the Dismissal Decision and only seeks to review the Confirmation Decision;
b)to review the Dismissal Decision, the applicant would require an extension of time under s.477(1) of the Migration Act, and in the absence of any written application meeting the requirements of s.477(2)(a) of the Migration Act, the Court cannot extend time: Sandan v Minister for Immigration & Border Protection & Anor [2015] FCCA 1166; (2015) 296 FLR 48 at [14]-[15] per Judge Lucev;
c)in any event, the grounds of the Judicial Review Application do not establish jurisdictional error in the Dismissal Decision or the Confirmation Decision;
d)there is no affidavit evidence, including medical evidence, in support of the applicant's explanation for his failure to appear at the Second Tribunal Hearing on 6 September 2017, furthermore, there was no evidence before the Tribunal that the applicant failed to attend because of illness or any other satisfactory reason, and even if the applicant had a reasonable explanation for failing to appear before the Tribunal it would not affect the power of the Tribunal to dismiss the application under s.426A(1A)(a) or (b) of the Migration Act if the conditions in s.426A of the Migration Act were met;
e)there is no basis for the applicant's complaint that the Tribunal should have made other efforts to contact him before the Second Tribunal Hearing on 6 September 2017 where, though not obliged to remind him of the Second Tribunal Hearing, the Tribunal sent an SMS reminder to the applicant's nominated telephone number on 30 August 2017, being five business days before the Second Tribunal Hearing, and when the applicant failed to attend the Second Tribunal Hearing, the Tribunal called the applicant's nominated mobile telephone number and spoke to the applicant’s migration agent who, a little later, provided the Tribunal with a new mobile telephone number for the applicant which was called without success, and, in all the circumstances, the Tribunal made reasonable steps to contact the applicant before the hearing;
f)the applicant was not denied natural justice as alleged, as he was given the opportunity to explain all aspects of his case at the First Tribunal Hearing on 27 July 2017, and was given the further opportunity to give evidence and present arguments at the Second Tribunal Hearing, but failed to appear at the Second Tribunal Hearing after being validly notified of the Second Tribunal Hearing, thus after the Dismissal Decision, the applicant had the opportunity but failed to seek reinstatement of the application and there was no failure by the Tribunal to comply with any of the procedural fairness requirements in Pt.7 Div.4 of the Migration Act, including the sending of the Invitation and other notices to the applicant’s authorised address for service;
g)the applicant's allegation that the Tribunal did not consider his practical situation and assumed that he could attend the Second Tribunal Hearing does not establish any jurisdictional error: in the Dismissal Decision at [2] the Tribunal stated no satisfactory reason had been given for the applicant’s non-appearance and, in circumstances where the applicant was validly invited to attend the Second Tribunal Hearing under s.425 of the Migration Act and failed to appear, it was open to the Tribunal to exercise its discretion to dismiss the application without any further consideration of the application or information before it; and
h)in circumstances where the Tribunal complied with its statutory obligations under s.426A of the Migration Act and the applicant failed to apply for reinstatement of the application, the Tribunal was both authorised and obliged under s.426A(1E) of the Migration Act, to confirm the Dismissal Decision: AYT16 v Minister for Immigration & Border Protection [2017] FCA 252; (2017) 71 AAR 491 (“AYT16”) at [9]-[10] per Perram J.
Consideration
Jurisdictional error
A decision by the Tribunal 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 Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. 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 such 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 appropriate statute: 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. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: 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.
Relevant legislative provisions
The following provisions of the Migration Act are particularly relevant to the grounds of the Judicial Review Application:
426A 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.
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.
441G. Authorised recipient
(1) If:
(a) a person (the applicant ) applies for review of a Part 7-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
(1A) For the purposes of subsection (1):
(a) paragraph (1)(a) is taken to also apply to an application for review of a Part 7-reviewable decision where the application is not a valid application under section 412; and
(b) in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not a valid application under that section).
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
Ground 1
The first ground of review states that the explanation for the applicant’s non-appearance at the Tribunal hearing arose because he required medical attention, and in the circumstances he forgot about the Tribunal Hearing and could not make contact to alert the Tribunal. The Court notes the following:
a)no request for an adjournment from the applicant was received by the Tribunal;
b)the applicant has provided no evidence to the Court verifying any medical condition suffered by him at any time (noting the assertion in ground 1 that he had been in poor health for a long time) or that he attended at a hospital (as also asserted in ground 1), nor any documentation confirming the applicant was unable to travel to the Tribunal Hearing or participate effectively in the Second Tribunal Hearing as a consequence of the applicant’s alleged illness: Hossain v Minister for Immigration & Multicultural Affairs [2000] FCA 842 at [23] per Mansfield J; NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] per Lindgren J; BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 at [35] per Perry J, in circumstances where he had the opportunity to do so, but did not do so, in the affidavit filed with the Originating Application, or subsequently in any affidavit filed in accordance with the Registrar’s Orders;
c)assuming the applicant had a reasonable explanation for failing to appear before the Tribunal, or to seek an adjournment of the Second Tribunal Hearing, neither he nor his migration agent made any contact with the Tribunal to seek to do so, and the applicant’s migration agent, when spoken to by a Tribunal officer on the day of the Second Tribunal Hearing said nothing about any illness or injury (long term or otherwise) which might have affected the applicant’s capacity to attend the Second Tribunal Hearing; and
d)the applicant was provided an opportunity to apply for reinstatement of the application within 14 days of the Dismissal Decision, and the applicant did not do so.
The substance of ground 1, if legitimate, ought to have been submitted to the Tribunal upon notification of the Dismissal Decision in support of an application to apply for re-instatement of the application. This Court is ultimately not concerned with the reasons for, or merits of, the applicant’s non-appearance, this Court is only concerned with the legality of the relevant decision made by the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J, specifically the Confirmation Dismissal. Had the applicant wished the Court to review the Dismissal Decision it would have no jurisdiction to do so as the Judicial Review Application was lodged out of the prescribed time period of 35 days allowed pursuant to s.477 of the Migration Act, there being 47 days between the Dismissal Decision and the filing of the Judicial Review Application.
In limited circumstances the Court may allow new evidence if that evidence is relevant to establishing jurisdictional error: SZJMG v Minister for Immigration & Border Protection [2008] FCA 1145 at [27] per McKerracher J. The applicant’s explanation for his non-appearance, even if accepted as a fact, would fail to establish that the Tribunal fell into jurisdictional error when making the Confirmation Decision. Having dismissed the applicant’s application under s.426A(1A)(b) of the Migration Act, the failure of the applicant to apply for reinstatement mandated the Tribunal to confirm the Dismissal Decision under s.426A(1E) of the Migration Act: AYT16 at [9]-[10] per Perram J; CJU16 v Minister for Immigration & Anor [2017] FCCA 741 at [10] and [13] per Judge Vasta, affirmed on appeal in CJU16 v Minister for Immigration & Border Protection [2017] FCA 1040 (“CJU16 Appeal”); EOG17 v Minister for Immigration & Anor [2018] FCCA 303 at [18c)] per Judge Lucev (“EOG17”). In CJU16 Appeal at [12] per Logan J the Federal Court also observed that:
The statutory code having been complied with by the Tribunal, it was, and is, nothing to the point that the applicant did not in fact know of the opportunity for the hearing. Indeed, as the Full Court observed in SBSC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 77, a statement in such circumstances that an applicant did not know about a tribunal hearing was of “no legal relevance”.
In short, the legality of the Confirmation Decision is not impugned by jurisdictional error in circumstances where the Tribunal complied with its statutory obligations. Indeed, had the Tribunal not confirmed the Dismissal Decision the legality of the Confirmation Decision would be affected by jurisdictional error as the Tribunal would have failed to exercise its jurisdiction pursuant to s.426A(1E) of the Migration Act.
Any suggestion the Confirmation Decision is unreasonable can be disposed of on the basis that the Confirmation Decision was mandated by statute, specifically s.426A(1E) of the Migration Act, and therefore, there can be nothing unreasonable, illogical or biased in the Tribunal making the Confirmation Decision, and the statutory mandate gave the Confirmation Decision an evident and intelligible justification: 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.
For the above reasons, no jurisdictional error is established by ground 1.
Ground 2
In ground 2 it appears the applicant is raising issues regarding procedural fairness arising from the sending of the Invitation. The Court has also addressed the limited circumstances whereby the Tribunal may be deemed to have acted unreasonably in dismissing an application pursuant to s.426A of the Migration Act.
In relation to the validity of the Invitation sent by the Tribunal the Court finds:
a)the applicant provided and gave authority for all correspondence, from both the Minister and the Tribunal, regarding his application to be sent electronically to his migration agent: CB 39-40 and CB 90;
b)the Invitation complied with the requirements of ss.425 and 425A of the Migration Act, specifically the Invitation was sent to the applicant’s migration agent as required by s.425A(2)(a) of the Migration Act, by one of the methods specified in s.441A of the Migration Act, namely transmission by email in accordance with s.441A(5) of the Migration Act;
c)by reason of s.441C(5) of the Migration Act the applicant is taken to have received the Invitation at the end of the day on which the Invitation was transmitted, and the Invitation satisfies the requirements of s.425A(3) of the Migration Act by giving more than the prescribed period of 14 days’ notice required by reg.4.35D(3) of the Migration Regulations 1994 (Cth); and
d)pursuant to s.441G of the Migration Act, where the applicant has authorised a person to receive documents on his behalf, and the Tribunal provides the documents to the authorised recipient, the Tribunal is taken to have given those documents to the applicant: Migration Act, s.441G(2). That provision applies to the Invitation in this case.
Where the applicant has claimed the Tribunal should have sent the Invitation to him personally, the relevant provisions of the Migration Act make it clear that the Tribunal was not required to send the applicant the Invitation personally. The effect of s.441G of the Migration Act has been explained as a “statutory deeming provision” enacted “to eliminate uncertainty as to whether a document has been given to an applicant”: Le v Minister for Immigration & Citizenship [2007] FCAFC 20; (2007) 157 FCR 321 at [25] per Emmett, Allsop and Middleton JJ, and “provides that in certain circumstances, a person is taken to have received a document”: Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13] per Spender, Kiefel and Dowsett JJ. The latter part of s.441G(2) of the Migration Act has been construed as a discretionary option, though s.441G(1) of the Migration Act is mandatory in that the Tribunal must give the Invitation to the authorised migration agent in accordance with the directions in an applicant’s notice, and should it not do so the Tribunal will commit jurisdictional error: Lee v Minister for Immigration & Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363 at [34] per Besanko J.
No claim has been made that the migration agent acted fraudulently in the sense described in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64, and no inference to that effect can be drawn on the evidence before the Court.
To the extent the applicant is suggesting the Tribunal should have sent him an invitation to the Second Tribunal Hearing personally, the Tribunal was not obliged to do so for reasons set out at [18]-[19] above, and therefore no denial of natural justice arises within the exhaustive definition in Pt.7 Div.4 of the Migration Act, and in particular s.422B of the Migration Act.
When determining if there is any unreasonableness in the Tribunal exercising the discretion under s.426A(1) of the Migration Act in the way it did the Court finds as follows:
a)there was nothing to alert the Tribunal, such as a close engagement by the applicant with the Tribunal prior to the Second Tribunal Hearing, to the applicant’s non-appearance as being out of character or amiss: Minister for Immigration & Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 at [56] per Griffiths, Kerr and Farrell JJ;
b)prior to the hearing the Tribunal sent an SMS reminder of the time and date of the Second Tribunal Hearing to the applicant’s mobile telephone number provided on his application for review to the Tribunal: CB 143 and CB 152 at [1];
c)the Tribunal phoned the applicant’s migration agent who does not appear to have provided any information as to why the applicant had not appeared at the Second Tribunal Hearing: CB 144 and CB 152 at [2];
d)the Tribunal endeavoured to contact the applicant on a new mobile telephone number provided by the applicant’s migration agent, however when rung by the Tribunal the number was not answered: CB 144 and CB 152 at [2];
e)the steps taken by the Tribunal to contact the applicant were reasonably necessary steps for the Tribunal to take, and steps sufficient to ensure that the Tribunal cannot be said to have acted capriciously or unreasonably, or to have committed a jurisdictional error: AZAFBv Minister for Immigration & Border Protection [2015] FCA 1383; (2015) 244 FCR 144; (2015) 68 AAR 171 at [24]-[28] per North ACJ; EOG17 at [17(b)] per Judge Lucev; and
f)in light of the attempts made by the Tribunal to contact the applicant, and the contact with the applicant’s migration agent, and in the absence of any close engagement or indication the applicant would attend an adjourned hearing were the Tribunal to prefer such a course of action, it was reasonable for the Tribunal to proceed to dismiss the application under s.426A of the Migration Act: MZALO v Minister for Immigration & Border Protection [2016] FCA 1339; (2016) 70 AAR 495 at [22]-[28] per Mortimer J.
For the above reasons no jurisdictional error is established by ground 2.
Ground 3
It is unclear what the applicant is trying to claim in ground 3.
If the applicant is suggesting the Tribunal was biased, in making the Dismissal Decision or the Confirmation Decision, then bias, actual or apprehended, is a claim that must be clearly made and distinctly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. In the Court’s view no bias on the part of the Tribunal is evident if that is what the applicant is endeavouring to suggest.
To the extent that ground 3 is a criticism of the Tribunal, or an expression of dissatisfaction with the Tribunal dismissing the applicant’s application, mere disagreement with the outcome of the various decisions made by the Tribunal, and in particular the Confirmation Decision, on the basis of the factual circumstances as they appeared to the Tribunal, does not support a contention or claim that the Tribunal committed a jurisdictional error: SZJEH v Minister for Immigration & Citizenship [2017] FCA 1706 at [4] per Jacobson J. The applicant is effectively asking this Court to review the Dismissal Decision or the Confirmation Decision against his “explanation” for his non-appearance, seemingly in the belief that the Court can provide an opportunity to him to again make or argue his claims for protection. For reasons set out above in relation to grounds 1 and 2, there being no jurisdictional error in relation to the Tribunal’s decisions made on the basis of the applicant’s non-appearance and the applicant’s failure to apply for reinstatement of his application, there is no basis for this Court to make any order in respect of those Tribunal decisions. There is no evidence before the Court which establishes what the applicant’s practical situation was at the time of the Second Tribunal Hearing, and that fact, together with his earlier failure to apply for reinstatement of his application, renders ground 3 hopeless in any event.
For the above reasons, no jurisdictional error is established by ground 3.
Oral submissions at hearing
As to the applicant’s oral submissions he misperceived the power and role this Court has in relation to the Judicial Review Application, which is not to engage in merits review, which the applicant sought by seeking to “reiterate his case” before the Tribunal: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1. The applicant’s oral submissions do not establish jurisdictional error in the Tribunal Decision.
Conclusion and Orders
The Court has found that no jurisdictional error in the Tribunal Decision has been established by the applicant’s grounds in the Judicial Review Application or his oral submissions. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 26 April 2018
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