Ewr17 v Minister for Immigration
[2018] FCCA 810
•6 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EWR17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 810 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Class XA protection visa application – Malaysian citizen – non-attendance at hearing through alleged illness – whether denial of procedural fairness – whether jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: AYT16 v Minister for Immigration & Border Protection [2016] FCCA 2733 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 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 |
| First Applicant: | EWR17 |
| Second Applicant: | EWS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 589 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 14 March 2018 |
| Date of Last Submission: | 14 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 6 April 2018 |
REPRESENTATION
| First Applicant: | No appearance |
| Second Applicant: | No appearance |
| Counsel for the First Respondent: | Ms B Rayment |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS (as made on 14 March 2018)
The application be dismissed.
Written reasons for judgment be published from chambers at a later time.
The applicants pay the first respondent’s costs in the sum of $5,600 by 14 April 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 589 of 2017
| EWR17 |
First Applicant
EWS17
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and orders made
By way of an application for judicial review (“Judicial Review Application”) filed on 6 November 2017 the applicants seek 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”). The Tribunal Decision dated 4 October 2017 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Class XA protection visa (“Protection Visa”) to the applicant. The Tribunal Decision appears in the Court Book (“CB”) at CB 198.
On 14 March 2018 the Court made orders as follows:
1. The application be dismissed.
2. Written reasons for judgment be published from chambers at a later time.
3. The applicants pay the first respondents costs in the sum of $5,600 by 14 April 2018.
What follows are the Court’s Reasons for Judgment referred to in order 2 above.
Background to Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicants are partners, both Malaysian citizens, who arrived in Australia on valid travel visas on 28 March 2012: CB 23 and 47;
b)on 3 August 2015, the applicants applied for Protection Visa making the following claims:
i)the first applicant began borrowing money from “ah longs”, illegal money lenders or loan sharks in Malaysia, to support the first applicant’s struggling enterprise;
ii)the loan sharks charged extremely high interest rates and despite the first applicant’s best endeavours to repay the owed amounts he could not, and upon fleeing Malaysia he owed approximately MYR300,000, a sum he believe has further inflated due to the interest accrued: CB 31;
iii)the loan sharks will harm and mistreat the first applicant if he returns as he has been threatened with harm on numerous occasions by the loan sharks and while he has reported this on two occasions to the police they have not attended to his complaints as they are reluctant to assist victims of loan shark threats and violence: CB 32;
iv)as the loan sharks have networks across Malaysia it is easy for the loan sharks to locate victims, and the first applicant thus fears they will continue to harass and threaten him because he is unable to repay his debts and the loan sharks are violent and persistent: CB 33; and
v)the second applicant claimed to fear harm on the basis of her being associated with the first applicant, as his partner: CB 57-58;
c)on 3 May 2016 the Delegate invited the applicants to respond to adverse information comprising records indicating the applicants had previously applied, and been refused, a protection visa under an identity different to that under which they had entered Australia on this occasion. The migration agent, by way of statutory declaration of the first applicant, forwarded to the Delegate an explanation for the adverse information, being that the previous migration agent applied for protection visas in the applicants’ prior names without telling the applicants: CB 122-123 and CB 135-151;
d)on 10 June 2016 the applicants were invited to attend an interview with the Delegate on 25 July 2016: CB 130-133;
e)on 11 August 2016 the Delegate refused to grant the applicants a Protection Visa: CB 152-17;
f)on 26 August 2016 the applicants applied for review by the Tribunal of the Delegate’s Decision: CB 172-174;
g)on 3 August 2017 the applicants’ migration agent was sent an invitation via email to the applicants’ nominated email address to attend a hearing before the Tribunal scheduled for 1.30pm WST on 19 September 2017 (“Invitation”): CB 182-183;
h)two SMS reminders as to the time and date of the hearing on 19 September 2017 were sent to the applicants’ on 12 and 18 September 2017: CB 180-183;
i)the applicants did not attend the Tribunal at the listed day and time for hearing: CB 185-187;
j)the Tribunal contacted the applicants’ migration agent, who said he was unsure whether the applicants were still their clients, but would seek instructions as to whether the applicants were still their clients: CB 184;
k)despite having made enquiries the applicants’ migration agent was not able to advise the Tribunal of the applicants’ whereabouts: CB 184;
l)the Tribunal tried to contact the applicants directly by calling the first applicant’s mobile phone, but the number was “not available”: CB 184; and
m)on 19 September 2917 the Tribunal dismissed the application for non-appearance: CB 185.
Tribunal Decisions
On 19 September 2017 when the applicants failed to appear at the Tribunal hearing the Tribunal made the following decision (“Dismissal Decision”):
1. The review applicants were invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 19 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 two SMS reminders about the hearing. These were sent both five business days and one business day before the scheduled hearing.
2. The review applicants 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 applicants were properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicants were about the hearing. At the time of the scheduled hearing, when the review applicants did not appear, a call was placed to the applicants' registered migration agent, but the agent had no knowledge about the non-attendance. After this, the Tribunal attempted to contact the review applicants directly on their personal mobile telephone, but the call registered a disconnected tone. No satisfactory reason for the non-appearance has been given.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
CB 192.
Having received no application for reinstatement, the Tribunal confirmed the Dismissal Decision on 4 October 2017 (“Confirmation Decision”) in the following terms:
1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 10 August 2016 to refuse to grant the visa applicants protection visas under the Migration Act 1958 (the Act).
2. On 4 October 2017 (sic) the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The applicants were 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 applicants were 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 applicants 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 decisions under review are taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
CB 199. The reference to 4 October 2017 at [2] of the Confirmation Decision is obviously an error: the date should be 19 September 2017, being the date of the Dismissal Decision.
Judicial Review Application
The Judicial Review Application seeks review of the Confirmation Decision on a single ground, though for ease of reference the Court will refer to each paragraph as ground 1, 2 and 3 respectively:
I WAS UNABLE TO ATTEND AAT HEARING BECAUSE MY GIRLFRIEND WAS SICK, I HAD NO OTHER CHOICE. SHE HAS BEEN IN VERY POOR HEALTH FOR A LONG TIME AND NEED TO SEE THE DOCTOR ON A REGULAR BASIS, SHE ALSO NEEDS TO TAKE MEDICINE TO ALLEVIATE THE PAIN AND SUFFERING. WE DID NOT THINK THAT SHE FELT HER HEAD SPLITTING AND HAD TO STAY IN BED, UNTIL I SENT TO THE HOSPITAL IMMEDIATELY AND SHE COULD PICK UP BACK TO LIFE. UNDER SUCH A SITUATION, I COULD NOT REMEMBER TO ATTEND AAT HEARING AND WE ALSO COULD NOT INFORM AAT THAT SHE WAS ILL AND UNABLE TO ATTEND THE HEARING.
HOWEVER, AAT ONLY SENT US AN EMAIL TO OUR AUTHORIZED RECIPIENT, THEY SHOULD CONFIRM AGAIN BEFORE THE HEARING, BUT THEY DID NOT MAKE A PHONE CALL TO ASK US ABOUT OUR CASE AND MADE SUCH A DECISION. HOWEVER, AAT REJECTED US SO QUICK AND IMMEDIATELY WITHOUT ASKING US ANYTHING AND SHOULD CHECK THE SITUATION. SO, IT BREACHED THE PROVISIONS IN THE LAW. WE SHOULD HAVE RIGHT TO COMMENT ON ANY ADVERSE VIEW. WE WERE DENIED SUCH RIGHTS. WE WERE NOT GIVEN OPPORTUNITY TO EXPLAIN ALL ASPECTS OF OUR CASE. SO, THE TRIBUNAL'S DECISION BREACHED OUR RIGHT TO NATURAL JUSTICE.
WE BELIEVE AUSTRALIA IS A COUNTRY THAT WILL PROTECT THE INTERESTS OF DISADVANTAGED GROUPS, SO WE FLED TO AUSTRALIA TO SEEK HELP. HOWEVER, WE DID NOT THINK THAT AAT IS SO INDIFFERENT TO US. AAT DID NOT CONSIDER OUR PRACTUAL SITUATION AND TOOK IT FOR GRANTED THAT WE COULD ATTEND THE HEARING LIKE OTHERS, WHICH IS REALLY NOT HUMANE.
Both applicants filed an affidavit sworn 27 October 2017 comprising three paragraphs, the first two of these paragraphs referred to the applicants being Malaysian citizens and providing their date of birth. The third paragraph simply stated “I fear return to Malaysia.”
The applicants, by orders dated 8 December 2018, were afforded an opportunity by a Registrar of this Court to provide an amended application, any further supporting affidavits and a written outline of submissions prior to the matter being heard on 14 March 2018 (“Registrar’s Orders”). The applicants did not avail themselves of this opportunity. The applicants also did not attend the hearing in this Court. Given the history of non-attendance before the Tribunal, and having read the relevant papers, including the Minister’s written submissions, the Court decided to determine the Judicial Review Application, rather than dismiss the Judicial Review Application for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).
It is pertinent to observe that the grounds of the Judicial Review Application indicate that (at least until the filing of the Judicial Review Application) the applicants continued to have the assistance of their migration agent with whom there had been communication as to the Tribunal hearing date.
Minister’s Submissions
The Minister sought that the application be dismissed on the following grounds:
a)the Invitation complied with the requirements of s.425A of the Migration Act by including statements to the effect of s.426A of the Migration Act, setting out the day, time and place at which the Tribunal hearing was to take place and providing a period of notice in excess of the prescribed period in the Migration Regulations 1994 (Cth) (“Migration Regulations”) and the Tribunal was satisfied, having reviewed the file, that:
i)the applicants were properly invited to the Tribunal hearing in accordance with s.441A(5) of the Migration Act;
ii)the Invitation had not been returned to sender;
iii)two SMS hearing reminders were sent to the applicants reminding them of the Tribunal hearing;
iv)at the time and date of the scheduled Tribunal hearing when the applicants did not appear a call was placed to their migration agent, who had no knowledge about their non-attendance; and
v)a call was then placed to the applicants directly on their personal mobile telephone, but the call “registered a disconnected tone”: CB 192 at [2];
b)the Tribunal wrote to the applicants’ representative at the nominated email address to notify them of the Dismissal Decision and to inform them about the ability to apply for reinstatement by 3 October 2017: CB 188-194, and found that the applicants had been notified of the Dismissal Decision and had been provided with a copy of the written statement in accordance with s.426B(5) of the Migration Act, that the applicants were advised that reinstatement of the application could be sought within 14 days and that failure to apply for reinstatement would result in confirmation of the Dismissal Decision, and that as the applicants did not apply for reinstatement within the 14 day period, the Tribunal was required to confirm the Dismissal Decision and affirmed the Dismissal Decision in the Confirmation Decision: CB 199 at [3]-[4];
c)the applicants complain that the Tribunal rejected their application so quickly and immediately without asking them anything or giving them the ability to explain aspects of their case such that the Tribunal breached natural justice, however s.426A(1) of the Migration Act empowers the Tribunal to make a decision on the review or dismiss the proceedings in circumstances where an applicant is validly invited to appear before the Tribunal pursuant to s.425 of the Migration Act and fails to appear;
d)the Dismissal Decision complied with s.426B(2) of the Migration Act by making a written statement that set out the reasons for the Tribunal’s decision to dismiss the matter for non-appearance, and as such cannot be said to lack 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 (“Li”), and the Dismissal Decision was sent to the nominated email address on the same day together with a statement describing the effect of ss.426A(1B)-(1F) of the Migration Act, in compliance with ss.426B(5)-(6) and 441A(5) of the Migration Act: CB 188-194;
e)when the applicants failed to apply for reinstatement within 14 days, the Confirmation Decision complied with ss.426A(1E) and 430A of the Migration Act by confirming the Dismissal Decision, and notification of the Confirmation Decision and the Confirmation Decision were both sent on the same day in compliance with ss.430A and 441A(5) of the Migration Act: CB 194-199; and
f)pursuant to s.426A(1E) of the Migration Act, the Confirmation Decision made by the Tribunal was the necessary consequence of the applicants’ failure to seek reinstatement of the application within the specified 14 day period: AYT16 v Minister for Immigration & Border Protection [2016] FCCA 2733 at [28] per Judge Driver; Singh & Anor v Minister for Immigration & Anor [2016] FCCA 2888.
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 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. 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 applicants’ non-appearance at the Tribunal hearing arose because the second applicant required medical attention, and in the circumstances they 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 applicants was received by the Tribunal;
b)the applicants have provided no evidence to the Court verifying any medical condition suffered by the second applicant at any time (noting the assertion in ground 1 that she had been in poor health for a long time) or that they attended at a hospital (as also asserted in ground 1), nor any documentation confirming the applicants were unable to travel to the Tribunal hearing or participate effectively in the Tribunal hearing as a consequence of the second 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, in circumstances where they had the opportunity to do so, but did not do so, in their affidavits filed with the Originating Application, or subsequently in any affidavit filed in accordance with the Registrar’s Orders;
c)assuming the applicants had a reasonable explanation for failing to appear before the Tribunal, or to seek an adjournment of the Tribunal hearing, neither they nor their migration agent made any contact with the Tribunal to seek to do so; and
d)the applicants were provided an opportunity to apply for reinstatement of the application within 14 days of the Dismissal Decision, and the applicants 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 applicants’ 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 applicants 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, being 48 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 applicants’ explanation for their 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 applicants’ Protection Visa application under s.426A(1A)(b) of the Migration Act, the applicants failing to apply for reinstatement mandated the Tribunal to confirm the Dismissal Decision under s.426A(1E) of the Migration Act: 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: Li.
For the above reasons, no jurisdictional error is established by ground 1.
Ground 2
In ground 2 it appears the applicants are raising issues regarding the 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 applicants both provided and gave authority for all correspondence, from both the Minister and the Tribunal, regarding their Protection Visa Application to be sent electronically to their nominated migration agent: CB 107 and 173;
b)the Invitation complied with the requirements of ss.425 and 425A of the Migration Act, specifically the Invitation was sent to the applicants’ 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 applicants are 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; and
d)pursuant to s.441G of the Migration Act, where the applicants have authorised a person to receive documents on their behalf, and the Tribunal provides the documents to the authorised recipient, the Tribunal is taken to have given them to the applicants: Migration Act, s.441G(2). That provision applies to the Invitation in this case.
Where the applicants have claimed the Tribunal should have sent the Invitation to them personally, the relevant provisions of the Migration Act make it clear that the Tribunal was not required to send the applicants 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 of 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 applicants are suggesting the Tribunal should have sent them an invitation to the Tribunal hearing personally, the Tribunal was not obliged to do so for reasons set out at [20]-[21] 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 applicants with the Tribunal prior to the hearing, to the applicants’ 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 two SMS reminders of the time and date of the Tribunal hearing to the first applicant’s mobile telephone number provided on his application for review to the Tribunal: CB 184 and CB 192 at [2];
c)the Tribunal phoned the applicants’ migration agent who had no knowledge as to why the applicants had not appeared at the Tribunal hearing, and was unaware if he was still engaged to act for the applicants as he had received no correspondence or instructions from the applicants: CB 184 and CB 192 at [2];
d)the Tribunal endeavoured to contact the first applicant’s mobile telephone, however the number was disconnected, and no other contact number was provided, save for the migration agent who returned the Tribunal’s earlier call advising he had been unable to contact the applicants: CB 184 and CB 192 at [2];
e)the Tribunal had searched its records for contact details and had made what attempts it could to establish a reason for non-attendance, those being 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 applicants, and the contact with their migration agent, and in the absence of any close engagement or indication the applicants 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 applicants are trying to claim in ground 3.
If the applicants are 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 applicants are 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 applicants’ Protection Visa 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 applicants are effectively asking this Court to review the Dismissal Decision or the Confirmation Decision against their “explanation” for their non-appearance in some belief the Court can provide an opportunity to them to again make 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 applicants’ non-appearance and the applicants’ failure to apply for reinstatement of their application, there is no basis for this Court to make any order in respect of those Tribunal decisions. In any event, there is no evidence before the Court which establishes what the applicants’ practical situation was at the time of the Tribunal hearing, and that fact, together with their non-appearance before the Court, and their earlier failure to apply for reinstatement of their application, renders ground 3 hopeless.
For the above reasons, no jurisdictional error is established by ground 3.
Conclusion and Orders
For the above reasons the Court has concluded that no jurisdictional error in the Tribunal Decision has been established by the applicants, and it was for those reasons that the Court made orders on 14 March 2018 dismissing the Judicial Review Application and awarding costs to the Minister.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 6 April 2018
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