FGB17 v Minister for Immigration

[2018] FCCA 2733

FEDERAL CIRCUIT COURT OF AUSTRALIA

FGB17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2733

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Permanent Protection visa – whether it was open to the Tribunal to dismiss the application – whether the Tribunal complied with its statutory obligations – whether the Tribunal complied with the requirements of procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.426A, 476

Applicant: FGB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3725 of 2017

Judgment of: Judge Street

Hearing date: 24 September 2018

Date of Last Submission: 24 September 2018

Delivered at: Sydney

Delivered on: 24 September 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms M Perotti
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 24 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3725 of 2017

FGB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 December 2017 dismissing the applicant’s application for a XA-866 Permanent Protection visa pursuant to s 426A(1A)(b) of the Act.

2. The applicant is a citizen of Malaysia. The applicant arrived in Australia on 27 November 2016, as the holder of a UD-601 Electronic Travel Authority visa. It was not until 17 February 2017 that the applicant applied for protection. The applicant claimed to fear harm because his employer blames him for a robbery in which money was stolen.

3. On 23 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a Permanent Protection visa.

4. The applicant applied for review on 26 March 2017. In the application for review, the applicant provided an email address for the purpose of receipt of correspondence.

5. By letter dated 19 October 2017, the applicant was invited to attend a hearing to take place on 17 November 2017. That letter informed the applicant that the Tribunal was unable to make a favourable decision on the information alone. The applicant failed to appear at the hearing. Evidence has been led identifying that there were two separate SMS reminders sent to the applicant, five days and one day before the scheduled hearing.

6. The Tribunal found that the applicant had been properly invited to appear in accordance with the statutory regime. The Tribunal noted that the applicant had received SMS reminders sent to the mobile telephone number provided by the applicant. The Tribunal in those circumstances decided to dismiss the application under s 426A(1A)(b) of the Act.

7. The dismissal application was notified to the applicant in accordance with statutory regime and on 6 December 2017 the Tribunal found the applicant had been notified of the dismissal application in accordance with the statutory regime and that there had been no application for reinstatement and accordingly the Tribunal confirmed the decision to dismiss the application.

Before this Court

1. These proceedings were commenced on 30 November 2017. On 15 January 2018, a Registrar of the Court made orders giving the applicant the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court.

3. The applicant put no submissions from the bar table. The Court repeated the explanation to the applicant that if no submissions were put by the applicant from the bar table, the Court would not call upon the solicitor for the first respondent for submissions. The Court confirmed with the applicant that he had received the first respondent’s submissions and the applicant confirmed he wished to put no submissions in regard to the application.

The grounds

1. The grounds in the application are as follows:

   1. Decision was made without solid proofs.

   2. Fair decision process was not given to applicant.

Ground 1

1. In relation to ground 1, it was open to the Tribunal dismiss the application where the applicant had failed to appear or respond to the invitation sent to the applicant’s address. It was open to the Tribunal in the absence of a reinstatement application to dismiss the application. It was open to the Tribunal to proceed with the dismissal decision in accordance with the statutory regime and confirm the dismissal.

2. The Tribunal’s reasoning in deciding to proceed with the dismissal where the applicant had been notified by SMS, and where the Tribunal notified him in accordance with the statutory regime, cannot be said to be legally unreasonable. No particulars were provided in support of the allegation of solid proofs. On the face of the material before the Court, the Tribunal complied with its statutory obligations. On the face of the material before the Court the Tribunal complied with the requirements of procedural fairness. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, the applicant’s disagreement with the decision making process does not identify any procedural unfairness. The applicant was given an opportunity to attend a hearing and the applicant was given an opportunity to reinstate the proceedings. No procedural unfairness in apparent in the process of the review on the material before the Court. Ground 2 fails to make out any jurisdictional error.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 23 November 2018