EWD21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 832
Federal Circuit and Family Court of Australia
(DIVISION 2)
EWD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 832
File number(s): MLG 3394 of 2021 Judgment of: JUDGE VASTA Date of judgment: 11 October 2022 Catchwords: MIGRATION – Protection Visa – Summary Dismissal – Generic grounds – no reasonable prospect of successfully prosecuting the application – application dismissed Legislation: Migration Act 1958 (Cth): s 425, s 426A, s 426B
Federal Circuit and Family Court of Australia Act 2021 (Cth): s 143
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of last submission/s: 10 October 2022 Date of hearing: 10 October 2022 Place: Brisbane Counsel for the Applicant: The Applicant appearing in their own behalf with the assistance of an interpreter Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 3394 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EWD21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
11 OCTOBER 2022
THE COURT ORDERS THAT:
1.The Application filed on 13 December 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to this application fixed in the sum of $3,930.00.
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
JUDGE VASTA
Introduction
On 13 December 2021, the Applicant filed an originating application seeking a review of a decision made by the Administrative Appeals Tribunal (“AAT/Tribunal”). That decision was made on 22 November 2021. The Applicant advanced eight “grounds” for the review.
The Minister has submitted that there is no merit in any of the grounds and has asked the court to summarily dismiss the application.
Pursuant to s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), the Court may give judgement for one party against another in relation to the whole of a proceeding if the first party is defending the proceeding and the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding. This legislation also notes that the Court does not need to find that the proceeding is hopeless or bound to fail for it to have no reasonable prospect of success.
Background
The Applicant is a citizen of Thailand. He claimed to have borrowed money from a loan shark in Thailand and was unable to repay that loan. He said that he would be harmed if he returned to Thailand before settling the loan and that the Thai authorities would not be able to protect him.
The delegate refused to grant the application for a Protection Visa on 8 May 2020. On 10 May 2020, the Applicant applied to the Tribunal for a review of that decision.
In his application, the Applicant nominated an email address (j... [email protected]) but did not provide a telephone number.
The Applicant did not provide any other information to the Tribunal other than his application for review.
Tribunal contact
On 21 September 2021, the Tribunal sent an email to the Applicant (CB 66). This email explained that, because of the COVID-19 pandemic, no in-person hearings were being held. The email then invited the Applicant to a hearing by video or telephone. The email requested that the Applicant provided his telephone number within seven days. The Applicant did not respond to this email.
On 15 October 2021, the Tribunal sent another letter to the Applicant’s email address, pursuant to s 425 of the Migration Act 1958 (Cth) (“the Act”), inviting him to attend a telephone hearing on 4 November 2021 at 3:30 PM (CB 67). This invitation provided a telephone number and conference ID for the Applicant to dial at the time of the hearing. The invitation explained that if the Applicant did not appear, the Tribunal may dismiss the application without any further consideration of the application (CB 75).
On 4 November 2021, the Applicant did not attend. The Tribunal could not contact the Applicant because he had not given them his telephone number. The case note (CB 79) details that the AAT officer was present in the hearing from 3:30 PM until 4 PM with the Thai interpreter. The case note records that this allowed adequate time for the Applicant to dial into the hearing but that the Applicant failed to dial in or make contact. The “no show” was confirmed by the AAT member at 4.00pm.
Relevant provisions of the Migration Act
Section 426A of the Act, relevantly, provides that:
(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
Section 426A(1A)(b)provides:
(1A) The Tribunal may:
…
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Further, s 426B(5) provides:
(5) The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made;
The Actions of the Tribunal
As a result of the Applicant’s non-appearance on 4 November 2021, the Tribunal dismissed the proceedings. At 7:56 AM on 5 November 2021, the AAT, having acted pursuant to s 426A (1A)(b), made a written statement pursuant to s 426B, that it had dismissed the proceedings (CB 82).
This statement was sent to the Applicant, with the cover letter, at his nominated email address on 5 November 2021. The letter explained that the Applicant could apply, in writing, for reinstatement of the application but that he had to do so by 19 November 2021 (CB 81). The letter further explained that the Applicant needed to set out why he failed to appear at the hearing and that he should also provide any other information he wanted the Tribunal to take into consideration when deciding whether the reinstatement application should be granted.
The Applicant did not reply to this letter nor did he accept the invitation to apply for reinstatement of his application.
The Decision of the Tribunal
On 22 November 2021, the Tribunal confirmed the decision to dismiss the application. Again the Tribunal provided written reasons (CB 89). The Tribunal sent the decision, again with a cover letter to the Applicant at his nominated email address the same day.
As previously noted, the Applicant filed the present application on 13 December 2021.
The “grounds” of the present application
This application seeks to review the “confirmation” decision of 22 November 2021, rather than the “non-appearance” decision of 5 November 2021. The eight “grounds” relied upon by the Applicant do not themselves illustrate any jurisdictional error.
I will reproduce these grounds in full.
1.I am come from Thailand, and I was came to Australia .but I am hardly speak and understand word of English and has landed in real trouble. I came across a person who claimed to be a visa expert and advised that would help me to complete my visa application before my visa expired.
2.My application for review of a decision of a delegate of the Minister for Immigration on on 8 May 2020 to refuse to grant a protection visa. The review application was lodged with the Tribunal On 5 November 2021 the Tribunal dismissed the application as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing . What soever.
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 of the Act 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.However due to this barrier for people who and i wish to make refugee visa application so that people could remain in Australia to be safe from trouble back in their home country.
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. I am would like to explain that why I can not return to Thailand if I return my life is in danger.He borrowed money from a loan shark.He was harmed as he was unable to repay the money.The authorities in Thailand are unable to provide him with adequate assistance.He will be harmed if he returns to Thailand.in my personal reason it is very danger became personally offended and proceeded to verbally abuse me, physically harass me and assault me. and they will kill me if I return to Thailand,.So that hard time even now on my embarrassing including the pressure of not understanding the process and the expense is stressful I can not make any decision I did decide to not response to the AA T and advised AA T it was beyond my control,my case and my application very sensitivity of my clime and potential problem I would face upon return to my home country.
5.AAT member has considered my request however, decided not to accept my application and dismissed my application. AA T allows people did comment or did not comment however but AA T never accept anyone's claim. I strong believe that AAT member has not used his discretion in threat in my matter and I believe this is unfair treatment by AAT.I have been already suffering from consistent threat in my home country if I had to go back and my hope was on AAT to accept my matter so this application could be heard before the member.
6.AAT has made an error in law while dismissing my matter and refused to accept this application would like to request to FCC to accept my matter and set up new orders and replace orders made by AA T as AA T has made a jurisdictional error when decided not accept this matter. I don't see a reason why AAT has Natural Justice when they are not going to accept circumstances beyond my control.
7.New order will allow me to present this matter before the FCC and I would have fair outcome o
8.I would like to request to FCC to set aside old orders and replace by new order and accept my application for review as a valid application and decide on this matter at FCC. [errors contained within the original document]
As can be seen, the grounds are unspecific and do not seem to relate to the factual matrix of this particular application. It turns out that there are many other applications in the national docket that have utilised the same “word for word” grounds.
The Hearing
The Applicant had been given notice by my Chambers, as well as the National Migration team, as to the time and method of the hearing. He had not responded to any emails and had not had contact with the National Migration team, nor with my Chambers, before the hearing.
He did not appear at the hearing when the hearing commenced. My Associate dialled the phone number that was written on the “footer” of the originating application. Somewhat surprisingly, the Applicant answered the telephone and I informed the Applicant that this proceeding would be occurring now. The Applicant was assisted by an interpreter who was also present in the “virtual courtroom”.
Oddly enough, the Applicant said to me, almost immediately, that “my case is not as important as other people’s cases”. This may have been a reference to the fact that so many other persons have used the exact same grounds, though the Applicant later denied that he was making any such reference.
He told me that if he returned to Thailand that he would be killed. He said that if the “borrower” knew that he was back in Thailand, the borrower would come and find him, harm him and maybe kill him.
The Applicant said that his friends, at home, have told him that persons have come looking for him. He said that this frightens him and this is why he applied for the Visa. He said that “I want the Court to sympathise with me and understand my impending danger”.
I asked the Applicant what error the Tribunal made in the manner in which they made the decision to confirm the dismissal of his application. The Applicant said that he did not ever receive the invitation email.
I said to the Applicant that this did not seem credible. The only means of communication the Tribunal had with the Applicant was via email because the Applicant had not given the Tribunal his phone number. The Tribunal had sent the Applicant a notice on 21 September 2021, an invitation on 15 October 2021 and the “non-appearance” decision on 5 November 2021. All of these documents were sent to the same email address that the Applicant had nominated when he filed his application to the Tribunal. The Applicant did not reply to any of these emails.
The “confirmation” decision was sent to the applicant on 22 November 2021. The Applicant did not reply to this email either, however, he filed the present application on 13 December 2021. This is approximately 21 days after the decision had been sent to the Applicant. What it illustrates is that the Applicant could receive emails at his nominated email address and he could act upon them if he so wished.
When faced with these facts (and the obvious inference about his email address), the Applicant then told me that it was his fault for not checking his emails in that period of time. He then told me that he had been suffering from COVID-19 and it was because of COVID-19 that he failed to check his emails.
Discussion
As noted by the Minister, the only relief sought by the Applicant is a writ of certiorari for the confirmation decision to be quashed. The Applicant has not sought a writ of mandamus nor has he sought an injunction against the Tribunal. The Applicant did not seek to amend his application and it is, prima facie, incompetent.
Even if I were to amend the application so as to include a prayer for a writ of mandamus, such would not create a hurdle for the Minister in attempting to illustrate that there were “no reasonable prospects of success” in this application.
What is clear, on the material before me, is that the Applicant was properly invited to appear before the Tribunal and he simply failed to appear. The Tribunal was perfectly entitled to dismiss the application without further consideration. The Tribunal acted properly pursuant to s 426A and s 426B. The Applicant did not seek reinstatement within the 14 days as prescribed.
The Applicant has not even attempted to illustrate to the Court that the Tribunal has committed a jurisdictional error in making the “confirmation” decision. Even though the grounds assert that there had been an “unfairness” in the manner in which the Tribunal dealt with the matter, the unfairness is not particularised further on the grounds and was not articulated during the hearing before me.
The Applicant could not explain how COVID-19 would stop him accessing emails nor could he explain how it was that he received the email confirming the decision (which led to the institution of these proceedings) when he claimed that he had not received other emails sent to the same address.
There is no need to go through each of the eight “grounds” because none of them are an actual basis for concluding that the Tribunal fell into jurisdictional error. Though it would be possible for the Court to become cynical when dealing with a matter that simply used the same exact grounds as hundreds of other matters, the duty of the Court is to ignore that fact and adjudicate the matter on the merits. The only question of importance is whether the Minister has satisfied the criteria needed for the Court to grant the relief pursuant to s 143 of the FCFCOA Act.
Conclusion
I am satisfied that the Minister has proven that the Applicant has no reasonable prospect of successfully prosecuting the proceeding.
I dismiss the application filed 13 December 2021 with costs fixed in the sum of $3,930.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 11 October 2022
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