EWV17 v Minister for Immigration
[2018] FCCA 1250
•16 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EWV17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1250 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – protection visa application – Malaysian citizen – non-attendance at Tribunal hearing – dismissal for non-appearance before Tribunal – confirmation of dismissal for non-appearance – failure to state grounds of review – failure to attend hearing – whether a failure to prosecute proceeding with due diligence – whether jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.4.02, 13.03A, 13.03B Migration Act 1958 (Cth), ss.425, 425A, 426A, 426B, 430A, 441A, 474, 476 Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: AZAFBv Minister for Immigration & Border Protection [2015] FCA 1383; (2015) 244 FCR 144; (2015) 68 AAR 171 CJU16 v Minister for Immigration & Anor [2017] FCCA 741 DWM16 v Minister for Immigration & Anor [2018] FCCA 921 Nidanakavi v Minister for Immigration & Anor [2017] FCCA 873 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24 |
| Applicant: | EWV17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 593 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
| For the Applicant: | No appearance |
| 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 $5,600 by 16 June 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 593 of 2017
| EWV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(delivered ex tempore and later edited)
Introduction
In an application for judicial review filed 7 November 2017 (“Judicial Review Application”) the applicant seeks review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal.
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 Malaysian citizen, arrived in Australia on a valid travel visa on 27 May 2015, and upon expiry of that visa remained in Australia as an unlawful non-citizen: CB 16 and CB 51;
b)on 9 January 2017 the applicant applied for a Protection Visa making the following claims:
i)if returned to Malaysia his life will be threatened by a “lender” who has caused injury to him with dangerous weapons which have left a scar on his body: CB 32-33;
ii)the democratic system practiced has ruined Malaysia, the rate of unemployment has increased rapidly, living fees increase continuously and Malaysia has one of the highest debts with the World Bank, so there is no way for the applicant to continue living there, and this lead him to borrow money from the financial companies that are not licensed: CB 33;
iii)he has not moved or tried to move to another part of Malaysia because he may put himself into a more dangerous situation the next time he meets the lender: CB 34-35; and
iv)he is unable to pay the debt, and the authorities cannot protect him if he returns to Malaysia as it is a country that is “very unlawful”: CB 35;
c)on 23 March 2017, the Delegate’s Decision was to refuse to grant the applicant the Protection Visa: CB 46-63;
d)on 26 March 2017, the applicant applied to the Tribunal for review of the Delegate’s Decision, and by letter dated 15 September 2017 the applicant was invited to attend a hearing before the Tribunal on 27 October 2017: CB 64-71;
e)the applicant failed to appear at the Tribunal hearing on 27 October 2017 and the Tribunal dismissed the Protection Visa application for non-appearance pursuant to s.426A(1A)(b) of the Migration Act (“Dismissal Decision”), and advised the applicant of the Dismissal Decision on 30 October 2017, and also informed the applicant of the effect of s.426(1E) of the Migration Act, being that he may apply for re-instatement of the Protection Visa application by 13 November 2017 : CB 72-75 and CB78-79; and
f)on 14 November 2017, the Tribunal confirmed the Dismissal Decision pursuant to s.426A(1F)(“Confirmation Decision”): CB 84-87.
Tribunal Decisions
The Dismissal 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 10:00 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. 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 about the hearing]. No satisfactory reason for the non-appearance has been given.
3. At about 10:15 am on 27 October 2017 Tribunal officers attempted to contact the applicant using his provided phone number. The calls rang out unanswered.
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 was as follows:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 March 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 within the 14 days allowed for the applicant to seek re-instatement of the Protection Visa application before the Tribunal. The applicant did not apply to the Tribunal for re-instatement of the Protection Visa application.
The Judicial Review Application contains no grounds of review, and the applicant’s affidavit sworn 7 November 2017 in support of the Judicial Review Application simply annexes a copy of the Dismissal Decision.
On 8 December 2017, a Registrar of this Court made orders allowing the applicant to file an amended Judicial Review Application “giving complete particulars of each ground of review”, any further supporting affidavit, and a written outline of submissions. The applicant was in attendance when the Registrar made those orders, and an interpreter was also present. Despite this, the applicant did not file any amended Judicial Review Application, or any other material in support of the Judicial Review Application. At hearing the applicant did not appear when the matter was first called in the courtroom, and did not appear after the matter was called three times outside the courtroom.
The Minister filed an outline of written submissions as ordered by the Registrar seeking the Judicial Review Application be dismissed with costs. The Minister submitted the failure to provide any grounds of review alone warranted dismissal of the Judicial Review Application, and further submitted that, in any event, no jurisdictional error was apparent in either the Dismissal Decision or the Confirmation Decision. In summary the Minister’s further submission was that:
a)the Tribunal had complied with ss.425 and 425A of the Migration Act when inviting the applicant to appear before the Tribunal;
b)each of the required written statements and notifications of the Dismissal Decision and the Confirmation Decision complied with ss.426B and 430A of the Migration Act; and
c)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 within the prescribed 14 day period under s.426(1E) of the Migration Act.
Consideration
No grounds of review
In EBE17 v Minister for Immigration & Anor [2018] FCCA 45 at [16]-[19] per Judge Lucev (“EBE17”), the Court found that, notwithstanding the applicant was a self-represented litigant and that an appropriate degree of latitude ought be extended in relation to the formulation of grounds of review, the failure to state any grounds of review in a judicial review application is in itself a basis for dismissal (and see also DWM16 v Minister for Immigration & Anor [2018] FCCA 921 at [16]-[24] per Judge Lucev, and the cases there cited). In that case the Court referred to r.4.02 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) which states that the content of an application must briefly state the orders sought and the basis on which the orders are sought: EBE17 at [16] per Judge Lucev. The Court now makes the further observation that rr.13.03A and 13.03B of the FCC Rules enable the Court to enter judgment against an applicant, including dismissal of the application in entirety, if the applicant fails to “prosecute the proceeding with due diligence”: FCC Rules r.13.03A(1)(e). In this case the failure to state any grounds of review in the Judicial Review Application and the applicant’s failure to appear today plainly constitute a failure to prosecute the proceeding with due diligence.
In the Court’s view, 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 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 where the applicant has not filed an amended Judicial Review Application; and
c)the applicant has failed to appear at the hearing today,
the failure to state grounds of review in the Judicial Review Application is sufficient of itself to warrant dismissal of the Judicial Review Application.
The requirement for 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. To be successful the applicant bears the onus of proving jurisdictional error by the Tribunal: Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15] per Jagot J; SZOPX v Minister for Immigration & Citizenship [2011] FCA 552 at [11] per Flick J (from which an application for special leave to appeal to the High Court was refused: SZOPX v Minister for Immigration & Citizenship [2011] HCASL 161). Having failed to provide any grounds of review in his Judicial Review Application, or any amended Judicial Review Application as provided for in the Registrar’s Orders, and having failed to appear today, the applicant has quite simply failed to discharge the onus he bears.
Pursuant to s.426A(1A)(b) of the Migration Act, the Tribunal is expressly empowered to dismiss an application upon the non-appearance of an applicant at a Tribunal hearing. In this case the Court must determine if the Tribunal has made an error that has taken it outside the limits of its statutory power with respect to the procedural requirements under s.426A(1A)(b) of the Migration Act, or whether it has exercised its power reasonably in dismissing the Judicial Review Application pursuant to s.426A(1A)(b) of the Migration Act.
Procedural requirements
The Tribunal has the power to dismiss an application without any further consideration in circumstances where an applicant has been invited before the Tribunal to appear in accordance with s.425 of the Migration Act, and does not appear when scheduled to do so: Migration Act s.426A(1A)(b). Provided the Tribunal has issued an invitation to appear in accordance with s.425A of the Migration Act, the Tribunal is under no further obligation prior to the Tribunal hearing to confirm an applicant has received the invitation, unless there is some indication the invitation did not reach the applicant: 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 (“SZFHC”).
The Court finds that:
a)the applicant was sent an email invitation dated 15 September 2017 (“Invitation”) in accordance with s.425 of the Migration Act to attend the Tribunal hearing: CB 69;
b)the Invitation clearly stated the day, time and place at which the applicant was scheduled to appear and a statement setting out the effect of s.426A of the Migration Act: Migration Act ss.425A(1) and (4), CB 70;
c)the Invitation was provided to the applicant, 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, the applicant having expressly consented to receiving electronic communication regarding his Protection Visa in his Protection Visa application: CB 17; and
d)the Invitation satisfies the requirements of s.425A(3) of the Migration Act by giving more than the prescribed period of 14 days’ notice of the Tribunal hearing, as required by reg.4.35D(3) of the Migration Regulations 1994 (Cth).
The applicant is deemed to have received the Invitation irrespective of whether the applicant in fact did or did not receive it and did or did not read and understand it: VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134; (2004) 136 FCR 407 at [14] per Sundberg and Hely JJ, and the Tribunal was under no further obligation to confirm if the applicant would attend the Tribunal hearing: SZFHC at [39] per Spender, French and Cowdroy JJ.
The Court finds the applicant was validly invited to the Tribunal hearing.
Dismissal Decision
While the Tribunal has the discretion to dismiss an application in the exercise of the power under s.426A(1A)(b) of the Migration Act, it must ensure when doing so that the applicant is afforded procedural fairness, and that the decision to dismiss is not legally unreasonable in the circumstances of the case: MZALO v Minister for Immigration & Border Protection [2016] FCA 1339 at [22]-[28] per Mortimer J (“MZALO”).
The Court notes the applicant was sent two SMS reminders to his nominated mobile telephone contact, one on 20 October 2017 and the second on 26 October 2017, informing him about the Tribunal hearing: CB 77. Upon the applicant not appearing at the designated time and place for the Tribunal hearing, the Tribunal attempted to contact the applicant on his mobile phone number, but the call was not answered: CB 77. The applicant was then declared a ‘No Show’ by the Tribunal at 10.15am, 15 minutes after the applicant was scheduled to appear: CB 58.
The Tribunal followed the procedure in s.425A of the Migration Act, and took the additional precaution of sending SMS reminders to the applicant and phoning him on the day of the Tribunal hearing. Those steps are evidence the Tribunal did not act capriciously or unreasonably when dismissing the appeal under s.426A(1A)(b) of the Migration Act: AZAFBv Minister for Immigration & Border Protection [2015] FCA 1383; (2015) 244 FCR 144; (2015) 68 AAR 171 at [24]-[28] per North ACJ. Further, there is no evidence of the applicant having close contact with the Tribunal in advance of the Tribunal hearing such as to suggest the Tribunal should have been more vigilant in exercising the discretion under s.426A of the Migration Act: SZFHC at [39] per Spender, French and Cowdroy JJ; MZALO at [22]-[28] per Mortimer J. There was no indication an adjourned hearing would be attended given there was no satisfactory explanation for the applicant’s non-attendance.
In the above circumstances there was no jurisdictional error in the Tribunal making the Dismissal Decision.
Confirmation Decision
Having validly exercised the discretion under s.426A(1A)(b) of the Migration Act, the applicant had 14 days to apply for reinstatement of his Protection Visa application, and was so informed by the Tribunal. The applicant having not applied for reinstatement of his Protection Visa application the Tribunal was obliged under s.426A(1E) of the Migration Act to confirm the Dismissal Decision without any further consideration: Nidanakavi v Minister for Immigration & Anor [2017] FCCA 873 at [16] per Judge Hartnett; 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, and it did so in the Confirmation Decision.
Therefore, the Court finds no jurisdictional error in the making of the Confirmation Decision.
Conclusion and Orders
The Court is satisfied, in the absence of grounds of review in the Judicial Review Application, and where the Judicial Review Application has not established jurisdictional error in either the Dismissal 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 the Court will order that the applicant pay the Minister’s costs, in the sum sought of $5,600, by 16 June 2018.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 17 May 2018
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