EVZ17 v Minister for Immigration
[2018] FCCA 1245
•16 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EVZ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1245 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – protection visa application – citizen of Malaysia – non-attendance at Tribunal hearing – dismissal for non-appearance – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.425, 425A, 426A, 426B, 430A, 441A, 441C, 474, 476 Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383 DWM16 v Minister for Immigration & Anor [2018] FCCA 921 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 |
| Applicant: | EVZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 590 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 16 May 2018 |
| Date of Last Submission: | 16 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 16 May 2018 |
REPRESENTATION
| Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $5600 by 16 June 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 590 of 2017
| EVZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(delivered ex tempore and later edited)
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”) made on 14 November 2017.
Relevant materials appear in the Court Book (“CB”) which was marked as exhibit 1.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Malaysia, arrived in Australia on a valid travel visa on 27 April 2016: CB 55;
b)on 16 June 2016, the applicant made a Protection Visa application making the following claims:
i)he feared harm on the basis of his membership of the Bersih movement, which opposed the current government in Malaysia, as many Bersih members had been imprisoned, Malaysian police had used tear gas and pepper spray on Bersih members during demonstrations and the media hides the issue: CB 32-33;
ii)he would be caught by the police and imprisoned if he returned to Malaysia: CB 32; and
iii)nobody can help as the authorities take action against those who conspire with the Bersih movement and he cannot move to another part of Malaysia, nor would it make any difference if he did, because the authorities will find him: CB 33-34;
c)on 18 January 2017 the Delegate refused to grant the applicant the Protection Visa: CB51-67;
d)the applicant applied to the Tribunal for review of the Delegate’s Decision on 28 January 2017: CB 68-69;
e)the Tribunal, by email dated 15 September 2017, invited the applicant to attend a Tribunal hearing on 27 October 2017 where he could give evidence and present argument to the Tribunal: CB 73-75;
f)on 20 October 2017 the Tribunal attempted to send an SMS reminder to the applicant via his nominated mobile telephone number, and upon the Tribunal receiving notification that the SMS delivery was unsuccessful, emails were sent to the applicant on 23 October 2017 and 26 October 2017, those emails reminding the applicant of the Tribunal hearing date and time, and further emphasising and requesting that he provide the Tribunal with a new mobile telephone number as a matter of priority: CB 76-79;
g)on 27 October 2017 the applicant failed to appear at the Tribunal hearing at the scheduled time, and the Tribunal attempted to contact the applicant on his mobile telephone, however the call was unsuccessful as the number was disconnected: CB 80-86;
h)on 30 October 2017, the Tribunal notified the applicant that, on account of his non-appearance his Protection Visa application was dismissed pursuant to s.426A(1A)(b) of the Migration Act (“Non-Appearance Decision”), however he was also advised that he may apply for reinstatement of his Protection Visa application by 13 November 2017: CB 88-89; and
i)having received no application for reinstatement of the Protection Visa application, on 14 November 2017 the Tribunal confirmed its decision to dismiss the Protection Visa application (“Confirmation Decision”) and notified the applicant accordingly on 15 November 2017: CB 93-96.
Tribunal Decisions
The Non-Appearance Decision reads as follows:
1. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 27 October 2017 at 09:30 am. 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.
2. No request for adjournment was received. 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.
3. The Tribunal has attempted to send SMS reminders concerning the hearing date to the mobile phone number as provided by the applicant. Indications are that the mobile phone has been disconnected.
4. No satisfactory reason for the non-appearance has been given, considering that the hearing invitation was satisfactorily delivered to the applicant's nominated email address for service.
5. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision reads as follows:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 January 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2. On 27 October 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
The applicant filed the Judicial Review Application on 7 November 2017. The Judicial Review Application was flawed in some respects. The applicant indicated he sought review of the Tribunal Decision, a decision of the Immigration Assessment Authority, a decision of the Minister or another decision-maker under the Migration Act, and finally a future decision, all said to be dated 27 October 2017. The Judicial Review Application also contained no grounds of review, with the area where the applicant was asked to provide grounds of review being left blank. The applicant filed an accompanying affidavit affirmed on 7 November 2017 whereby he annexed a copy of the Non-Appearance Decision.
On 8 December 2017 a Registrar of this Court made orders (“Registrar’s Orders”) afforded the opportunity for the applicant to:
file and serve an amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.
The Registrar’s Orders also allowed the applicant to file any further supporting affidavits and any written submission prior to the hearing listed on 16 May 2018. The applicant filed no further materials.
At hearing the applicant was provided an opportunity to make oral submissions. The applicant complained of having had a good job in the oil and gas industry in Malaysia, but of no longer having that job. When asked what it was about the Tribunal’s handling of the matter that he complained about, the applicant asked if he could make another visa application. The applicant made no submission asserting any error, let alone jurisdictional error, in the Tribunal’s handling of the matter.
In accordance with the Registrar’s Orders the Minister filed an outline of written submissions seeking that the Judicial Review Application be dismissed with costs. The Minister submitted that the failure to provide any grounds of review in the Judicial Review Application alone warranted dismissal, but nonetheless submitted that the Tribunal had complied with ss.425 and 425A of the Migration Act when inviting the applicant to appear, that the written statements and notification of decision complied with ss.426B and 430A of the Migration Act, and that the Confirmation Decision under s.426A(1E) of the Migration Act was one that was a necessary consequence of the applicant failing to seek reinstatement of the Protection Visa application.
Consideration
Absence of grounds of review
To be successful in the Judicial Review Application the applicant bears the onus of proving the Tribunal committed a jurisdictional error: Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15] per Jagot J.
The Court will not discuss at length the view it takes regarding the applicant failing to provide any grounds of review in his Judicial Review Application, and refers to EBE17 v Minister for Immigration & Anor [2018] FCCA 45 at [16]-[19] per Judge Lucev (“EBE17”); DWM16 v Minister for Immigration & Anor [2018] FCCA 921 at [16]-[24] per Judge Lucev (“DWM16”), for a discussion of the legal principles and precedents on this issue. The Court also notes the view expressed in DEM16 v Minister for Immigration & Anor [2017] FCCA 805 at [9] per Judge Jarrett:
His application was hopeless. It was hopeless because there were no grounds of review specified of in that application
Having recourse to the views expressed in EBE17, DWM16 and DEM16, and in the present circumstances where:
a)the applicant’s Judicial Review Application contained no grounds of judicial review;
b)the applicant was given the opportunity by reason of the Registrar’s Orders to include grounds of review in an amended Judicial Review Application, and the Registrar’s Orders referred to the need to “give complete particulars of each ground of review”, and the applicant has failed to file an amended Judicial Review Application; and
c)when given the opportunity at hearing to make submissions, the applicant made no submissions which identified any possible jurisdictional error in the Non-Appearance Decision and the Confirmation Decision,
the failure to provide grounds of review in the Judicial Review Application is sufficient, in the circumstances, to warrant its dismissal.
For that reason alone, the Court will dismiss the Judicial Review Application. Nonetheless, the Court will consider the Non-Appearance Decision and the Confirmation Decision separately for any jurisdictional error.
Jurisdictional error required
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474, 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1.
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s Protection Visa application: 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; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
Dismissal for non-appearance
The Tribunal dismissed the applicant’s application pursuant to s.426A(1A)(b) of the Migration Act. The Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Bill 2015 (Cth) at [356] (“Explanatory Memorandum”) states:
The purpose of this amendment is to clarify that if the applicant fails to appear before the RRT in response to an invitation under section 425 of the Migration Act, the RRT has the option of dismissing the application or making a decision on the review…
It is clear from the Explanatory Memorandum that the Tribunal has the power to dismiss an application for non-appearance by an applicant at a Tribunal hearing. The exercise of that power is, however, discretionary. When the Tribunal opts to exercise the discretion under s.426A(1A)(b) of the Migration Act, it must have complied with the procedural fairness requirements under s.425 of the Migration Act when inviting the applicant to appear at a Tribunal hearing, and the discretion must also be exercised reasonably as a condition of the valid discharge of the Tribunal’s decision-making power: 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.
In relation to inviting the applicant to attend the Tribunal hearing the Court finds as follows:
a)by a letter dated 15 September 2017, the Tribunal invited the applicant to a Tribunal hearing scheduled on 27 October 2017 (“Invitation”): CB 74;
b)that Invitation was sent to the applicant’s nominated email address in accordance with s.441A(5) of the Migration Act, and in accordance with s.441C(5) of the Migration Act, the applicant was deemed to have received the Invitation to hearing on 15 September 2017, being the end of the day the Invitation was transmitted (the Court also notes that the applicant has used the same email address as his address for service and correspondence with the Court regarding the Judicial Review Application): CB 74;
c)the Invitation provided the applicant with notice of the Tribunal hearing in excess of the prescribed period pursuant to reg.4.35D of the Migration Regulations 1994 (Cth); and
d)the Invitation clearly set out the day, time and place at which the hearing was to take place and statements to the effect of s.426A of the Migration Act.
It follows from the above findings that the Court is satisfied the Tribunal complied with ss.425 and 425A of the Migration Act in issuing the Invitation. In addition to the Invitation, the Tribunal attempted to send an SMS reminder to the applicant on 20 October 2017 to the nominated mobile telephone contact number of the applicant. When the SMS failed to deliver, the Tribunal wrote twice to the applicant’s nominated email address advising him of the Tribunal hearing date and asking that he contact the Tribunal urgently to update his contact details: CB 76. At the Tribunal hearing the Tribunal attempted to contact the applicant on the only telephone contact number the applicant had provided to the Tribunal (the applicant having failed to respond to correspondence from the Tribunal concerning updated contact details).
Attention must turn to the reasonableness of the Tribunal dismissing the application for non-appearance pursuant to s.426A(1)(b) of the Migration Act. The Court observes as follows:
a)the applicant was sent an SMS reminder, and though delivery of the reminder failed, the Tribunal proceeded to write to the applicant by email on a further two occasions to tell him of the date of the Tribunal hearing, and asked that he provide an updated telephone contact number to the Tribunal (which the applicant did not do);
b)the Tribunal, seemingly hopeless as it was, attempted to contact the applicant on the only nominated mobile telephone number that it had for the applicant. The call was a reasonably necessary step for the Tribunal to take, and a step sufficient to ensure that the Tribunal cannot be said to have acted capriciously or unreasonably: AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383; (2015) 68 AAR 71 at [24]-[28] per North ACJ;
c)at 9.45am on the day of the Tribunal hearing the applicant was declared a “no-show” as the attempts made by the Tribunal to contact him had been unsuccessful;
d)there was nothing to alert the Tribunal 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;
e)the evidence before the Court indicates the applicant had not maintained close contact or engagement with the Tribunal in the lead up to the proceedings given the applicant failed to respond to the Invitation and to the two emails requesting he contact the Tribunal as a matter of priority: 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; MZALO v Minister for Immigration & Border Protection [2016] FCA 1339; (2016) 70 AAR 495 (“MZALO”) at [22]-[28] per Mortimer J; and
f)there was no evidence to indicate that if the matter were to be adjourned the applicant would attend any further Tribunal hearing given the Tribunal was unable to make contact with the applicant or receive any response from the applicant: MZALO at [22]-[28] per Mortimer J.
Upon making the Non-Appearance Decision the Tribunal was required to comply with the requirements of s.426B of the Migration Act concerning the making of a written statement of its decision and notification thereof to the applicant. The Court finds the Tribunal complied with s.426B of the Migration Act in that following the Tribunal hearing on 27 October 2017, the Tribunal:
a)made a written statement giving reasons for the Non-Appearance Decision, as required by s.426B(2) of the Migration Act;
b)pursuant to s.426B(5)(a) of the Migration Act, the Non-Appearance Decision under s.426B(2) of the Migration Act was given to the applicant within 14 days after the day on which it was made, specifically on 30 October 2017;
c)as required by s.426B(5)(b) of the Migration Act, the Non-Appearance Decision was given to the applicant 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, to the applicant’s email address, and by virtue of s.441C(5) of the Migration Act the applicant is taken to have received the Non-Appearance Decision at the end of the day on which the Non-Appearance Decision was transmitted, that is 30 October 2017;
d)the Tribunal correctly advised the applicant that he could apply to the Tribunal, in writing, for reinstatement of the Protection Visa Application by 13 November 2017 (14 days after receiving the Non-Appearance Decision); and
e)the applicant was given a leaflet titled ‘Information about dismissal of applications – MR Division’ which contained a statement describing the effect of s.426A(1B)-(1F) of the Migration Act, as required by s.426B(6) of the Migration Act.
Having validly exercised the discretion under s.426A(1A)(b) of the Migration Act, absent any application for reinstatement of the Protection Visa application received from the applicant the Tribunal was obliged, under s.426A(1E) of the Migration Act, to make the Confirmation Decision confirming the Non-Appearance Decision: 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. Had the Tribunal not confirmed the Non-Appearance Decision it would have fallen into jurisdictional error as having failed to exercise the statutory task required under s.426A(1E) of the Migration Act.
The Court has concluded there was no jurisdictional error in the Tribunal exercising the discretion to dismiss the Protection Visa application pursuant to s.426A(1A)(b) of the Migration Act upon the non-appearance of the applicant and then confirming that decision upon the applicant failing to apply to the Tribunal for re-instatement of the Protection Visa application within 14 days.
Conclusion and Orders
The Court is satisfied, in the absence of grounds of review, and where the Judicial Review Application has not established jurisdictional error in either the Non-Appearance Decision or the Confirmation Decision, that the Judicial Review Application must be dismissed. There will be an order accordingly.
Costs must follow the event, and there will be an order that the applicant pay the first respondent’s costs in the sum of $5600 by 16 June 2018.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 18 May 2018
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