EWT17 v Minister for Immigration
[2018] FCCA 1249
•16 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EWT17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1249 |
| 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, 476, 474 Migration Amendment (Protection and Other Measures) Bill 2015 (Cth) |
| Cases cited: AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383; (2015) 68 AAR 71 DWM16 v Minister for Immigration & Anor [2018] FCCA 921 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 |
| Applicant: | EWT17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 592 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 16 May 2018 |
| Date of Last Submission: | 16 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 16 May 2018 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms G Ellis |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
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 592 of 2017
| EWT17 |
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)on 17 May 2016 the applicant, a Malaysian citizen, arrived in Australia on a valid travel visa;
b)the applicant made an application for a Protection (Class XA) Visa (“Protection Visa”) on 8 August 2016 making the following claims:
i)the applicant distrusts the judiciary and law enforcement in Malaysia, there is a poor system of government and the destruction of the global economy has caused poverty and unemployment causing him to live in harsh conditions: CB 32;
ii)the applicant has had to borrow money from relatives because of the economy and he could not pay the debt causing him to live in mental distress and fear as many people, he says in Thailand but it can be assumed he means Malaysia, who have also borrowed money have been hit, injured and killed: CB 32;
iii)if the applicant returns to Malaysia he fears he will be caught as his creditors are searching for him, and he could be beaten, injured or killed: CB 32;
iv)he has experienced and suffered discrimination in the workplace because of gender and “due to such problems, as the tawainese women, i have been living in harsh conditions”: CB 33; and
v)the applicant did not try to seek help or relocate within Malaysia as the problem is socio-economic and if returned to Malaysia he will live in harsh conditions and suffer discrimination: CB 34;
c)on 12 January 2017 the Delegate’s Decision was to refuse the applicant a Protection Visa: CB 48 and 61;
d)on 18 January 2017 the applicant applied to the Tribunal for review of the Delegate’s Decision, nominating a particular email address (which is the same email address as he has provided in the Judicial Review Application for the purposes of service): CB 44-69;
e)by invitation sent 15 September 2017 to the applicant’s nominated email address the Tribunal invited the applicant to a hearing on 27 October 2017: CB 73-75
f)the Tribunal sent two SMS hearing reminders of the Tribunal hearing to the applicant’s nominated mobile telephone contact number, the first on 20 October 2017 and the second on 26 October 2017: CB 79
g)the applicant failed to appear at the Tribunal hearing on 27 October 2017 and when the Tribunal attempted to contact the applicant via telephone the call was not answered and was diverted to the applicant’s voicemail: CB 79 and 83 at [3];
h)on 27 October 2017 the Tribunal dismissed the applicant’s review application on the basis of his non-appearance pursuant to s.426A(1A)(b) of the Migration Act (“Non-Appearance Decision”), and the applicant was advised by email of this outcome on 30 October 2017 in which email he was also advised he had until 13 November 2017 to apply for reinstatement of his Protection Visa application (see Migration Act, s.426A(1E): CB 81-83; and
i)on 14 November 2017, not having received any application for re-instatement, the Tribunal confirmed the Non-Appearance Decision (“Confirmation Decision”): CB 88-89.
Tribunal Decisions
The Non-Appearance Decision was 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 2:00 pm. 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 5 business days and one business day before the scheduled hearing.
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, and that two separate SMS reminders were also sent to the review applicant was about the hearing. No satisfactory reason for the non-appearance has been given.
3. At 2.12 pm on 27 October 2017 an officer of the Tribunal attempted to contact the applicant by his nominated phone number. There was no answer to the call.
4. 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 affirming the Non-Appearance Decision was as follows:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 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 Judicial Review Application was filed on 7 November 2017, that being prior to the time at which the applicant was entitled to apply to the Tribunal for reinstatement of the Protection Visa application, and prior to the making of the Confirmation Decision. The Judicial Review Application was accompanied by an affidavit sworn by the applicant on 7 November 2017 annexing a copy of the Non-Appearance Decision.
The Judicial Review Application had a number of defects, which included:
a)that the applicant sought review of a decision of the Tribunal, a decision of the Immigration Assessment Authority, a decision made by the Minister or a decision-maker under the Migration Act, and also the making of a future decision;
b)the date of each of these decisions was said to be 30 October 2017; and
c)the Judicial Review Application contained no grounds of review, with the area where the applicant was asked to provide grounds of review being left blank.
The applicant was, however, provided an opportunity by a Registrar of this Court, in orders made 8 December 2017 (“Registrar’s Orders”), to:
a)file and serve an amended Judicial Review Application giving complete particulars of each ground of review;
b)file and serve any affidavit containing any additional evidence relevant to the grounds of review; and
c)file and serve written submissions.
The Court notes that the applicant appeared before the Registrar at the directions hearing. Because the applicant was self-represented, when he was provided with the Registrar’s Orders he was also provided with material as to the availability of a free legal aid service.
The applicant did not avail himself of the opportunity provided by the Registrar’s Orders prior to the hearing today. No further documents were filed on behalf of the applicant. The Court nevertheless provided the applicant an opportunity to make oral submissions when the matter came on for hearing. The applicant made the following submissions:
a)that something had happened back in Malaysia and that as a result he had come to Australia;
b)that the two years in Australia had changed him substantially;
c)that he had not met his children for two years;
d)in response to a question as to what was the legal error that he contended was in the Tribunal’s handling of the matter, he said that Australia was a country which advocates for human rights, and that because of the issue in Malaysia he would “love to extend” his stay in Australia;
e)that he had found stable employment in Australia; and
f)there was nothing that he could say about an error by the Tribunal because he had been told by his agent that he need not appear before the Tribunal so he did not appear before the Tribunal.
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 the failure to provide any grounds of review alone warranted dismissal. The Minister otherwise submitted that:
a)the Tribunal had complied with ss.425 and 425A of the Migration Act when inviting the applicant to appear;
b)the written statements and notifications of decision complied with ss.426B and 430A of the Migration Act; and
c)the Tribunal’s Confirmation Decision under s.426A(1E) of the Migration Act was one that was a necessary consequence of failing to seek reinstatement.
Consideration
Matters raised in oral submissions of the applicant
In relation to the matters raised by the applicant in oral submissions the Court finds that:
a)the applicant did not receive any assistance from anyone to complete his Protection Visa application: CB 37;
b)the applicant did not have a representative representing him for the purposes of the review application before the Tribunal: CB 67, and email correspondence was sent to the applicant: CB 66;
c)the allegation that he was told not to attend was not in the grounds of review in the Judicial Review Application (there being no grounds: see [7(c)] above and [14]-[16] below);
d)the applicant did not seek reinstatement of his Protection Visa application on the basis that he was advised not to attend the Tribunal Hearing (or on any other basis); and
e)merely following the bad advice of an agent or representative, if given, does not constitute a fraud upon the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 at [45] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 at [33] per Tamberlin, Finn and Dowsett JJ.
It follows from the above that:
a)the applicant did not have an agent or representative representing him for the purposes of the review application before the Tribunal;
b)even if he had had such an agent or representative the advice said to have been given did not constitute a fraud on the Tribunal; and
c)the applicant failed in any event to apply for reinstatement of his Protection Visa application,
and, therefore, there was no jurisdictional error apparent from any matter raised in the oral submissions of the applicant.
Absence of review grounds
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. Having failed to provide any grounds of review in his Judicial Review Application, and subsequently failing to file any amended Judicial Review Application as provided for in the Registrar’s Orders, means that, subject to what the applicant said in his oral submissions today, the applicant has otherwise failed to discharge this onus. As the Court has otherwise observed the advice allegedly given to the applicant by the “agent”, which was the subject of oral submissions by the applicant, and the applicant’s subsequent conduct in failing to apply for reinstatement of the Protection Visa application: see [12] above, does not give rise to a fraud on the Tribunal, and does not constitute jurisdictional error by the Tribunal.
The Court will not discuss at length the law concerning the applicant failing to provide any grounds of review in his Judicial Review Application, but 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 (“DEM16”) 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 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 judicial 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 not filed an amended Judicial Review Application; and
c)when given the opportunity at hearing to make submissions, the applicant made no submissions which identified any jurisdictional error in the Tribunal Decision,
the failure to provide grounds of judicial review in the Judicial Review Application is a significant factor which supports dismissal of the Judicial Review Application.
Jurisdictional error required
Jurisdictional error
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. Furthermore, this Court does not have the jurisdiction to review the merits of the decisions made by the Tribunal, or to actually 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.
In the present circumstances, the Court must determine if the Tribunal has made an error that has taken it outside the limits of its statutory powers under s.426A of the Migration Act.
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 the inviting of the applicant to appear before the Tribunal, the Court notes the following:
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)the 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 on 15 September 2017, being the end of the day the document was transmitted: 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.
The Court further notes that the applicant’s email address for service in these proceedings is the same email address nominated by the applicant for the Tribunal proceedings, and used by the Tribunal to send the applicant his Invitation and all other correspondence from the Tribunal.
The Tribunal sent the applicant two SMS reminders of the date of the Tribunal hearing prior to the Tribunal hearing on 27 October 2017. At the Tribunal hearing the Tribunal attempted to contact the applicant on the contact number he had provided on his application to the Tribunal, but that attempt was unsuccessful. Upon the attempt to contact the applicant being unsuccessful, the Tribunal declared the applicant a “no-show”.
Between the applicant having applied for review with the Tribunal on 18 January 2017 and his Tribunal hearing on 27 October 2017 the applicant made no contact with the Tribunal, notwithstanding being advised he could provide material or written arguments for the Tribunal to consider. When considering if the Tribunal acted unreasonably in exercising the discretion under s.426A(1A)(b) of the Migration Act the Court is satisfied the Tribunal has not acted unreasonably:
a)there was nothing to alert the Tribunal to the applicant’s non-appearance as being out of character or amiss, particularly where he had had no correspondence with the Tribunal since lodging the application: 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 Tribunal hearing the Tribunal sent two SMS reminders of the date of the Tribunal Hearing to the applicant’s mobile telephone number provided on his application for review to the Tribunal: CB 79 and CB 83 at [2];
c)the Tribunal attempted to contact the applicant on the day of the hearing and that call went unanswered, and was diverted to a voicemail message. 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; and
d)in light of the attempts made by the Tribunal to contact the applicant, 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.
Upon making the Non-Appearance Decision, 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 the decision to dismiss 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.
While the exercise of s.426A(1A)(b) is discretionary, absent any application for reinstatement of the Protection Visa application received from the applicant it was a mandatory obligation for the Tribunal 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 then 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 application pursuant to s.426A(1A)(b) of the Migration Act upon the non-appearance of the applicant and then confirming that decision pursuant to s.426A(1E) of the Migration Act 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 that the Judicial Review Application has established no jurisdictional error in the Non-Appearance Decision or the Confirmation Decision, and that the Judicial Review Application must be dismissed. There will be an order accordingly.
Costs must follow the event, and there will be a further order that the applicant pay the Minister’s costs in the sum of $5600 by 17 June 2018.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 21 May 2018
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