Fie17 v Minister for Immigration

[2018] FCCA 2917

FEDERAL CIRCUIT COURT OF AUSTRALIA

FIE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2917

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – confirmation of a dismissal for non-appearance decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.425, 426A, 426B, 441A, 441C

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v SZVFW [2018] HCA 30

Applicant: FIE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3758 of 2017

Judgment of: Judge Driver

Hearing date: 15 October 2018

Delivered at: Sydney

Delivered on: 15 October 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Butler of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3758 of 2017

FIE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 November 2017.  The Tribunal confirmed an earlier decision it had made to dismiss the review application before it on account of the applicant’s non-attendance.

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 8 October 2018. 

3. The applicant, a citizen of Malaysia, arrived in Australia on 29 June 2016 as the holder of an Electronic Travel Authority.[1]  On 29 September 2016, the applicant submitted an application for a protection (Class XA) visa.[2]  On 7 March 2017, the delegate refused the grant of the protection visa.[3]

   [1] Court Book (CB) 44

   [2] CB 1 - 29

   [3] CB 44

4. On 16 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[4]  The applicant provided an email address “[email protected]” (nominated email address) as a method by which the Tribunal could correspond with him, as well as providing a nominated telephone number and his postal address in Griffith.[5]

   [4] CB 59

   [5] CB 59 – 60.  The nominated email address bears no relationship to the applicant’s name and thus does not disclose his identity

5. On 12 October 2017, the Tribunal sent to the applicant via the nominated email address an invitation to appear before the Tribunal at a hearing on 1 November 2017.[6]  The Tribunal also sent SMS hearing reminders to the nominated telephone number on 25 October 2017 and 31 October 2017.[7]

   [6] CB 65 - 67

   [7] CB 68

6. The applicant did not attend the Tribunal hearing on 1 November 2017, and the Tribunal proceeded to dismiss the application.[8]  On the same date, the Tribunal wrote to the applicant, providing him with a copy of the dismissal decision and inviting him to make any application for reinstatement of his application by 15 November 2017 (reinstatement invitation).[9]  The dismissal decision and the reinstatement invitation were sent to the applicant at the nominated email address.[10]  The applicant did not reply to the reinstatement invitation, and on 16 November 2017 the Tribunal made the confirmation decision.[11]  On 17 November 2017, the Tribunal sent the applicant a copy of the confirmation decision to the nominated email address.[12]

   [8] CB 75

   [9] CB 74

   [10] CB 73

   [11] CB 79

   [12] CB 76

Tribunal decisions

1. In making the dismissal decision, the Tribunal found:

   a)the applicant had been invited to appear before the Tribunal pursuant to s.425 of the Migration Act 1958 (Cth) (Migration Act) to attend the hearing on 1 November 2017 at 9.30am, and that the invitation stated that if the applicant did not attend the hearing his matter may be dismissed;[13]

   b)two hearing reminders were sent by SMS to the applicant, one five days prior to the hearing and one the day before;[14] and

   c)the applicant had been properly invited to a hearing in accordance with the requirements of s.441A(5) of the Migration Act, and no reason for the non-appearance had been given.[15]

   [13] CB 75, [1]

   [14] CB 75, [1]

   [15] CB 75, [2]

2. In making the confirmation decision, the Tribunal found that the applicant had been notified of the dismissal decision and been given a copy of the written statement as required by s.426B(5) of the Migration Act.[16]  The Tribunal further found that the applicant had been invited to apply for reinstatement of his application and informed that if he did not do so, that this would result in the decision to dismiss his application being confirmed.[17]  As the applicant had not sought reinstatement, the Tribunal confirmed the dismissal decision.[18]

   [16] CB 79, [3]

   [17] CB 79, [3]

   [18] CB 79, [4]-[5]

The present proceedings

1. These proceedings began with a show cause application filed on 5 December 2017.  The applicant continues to rely upon that application.  He filed a short affidavit with it which I received as a submission. 

2. I have before me as evidence the court book of Tribunal documents filed on 5 February 2018.  Those documents were not served in accordance with procedural orders made by Registrar Morgan on 18 January 2018.  They were served electronically last Friday and a paper copy was served on the applicant in court this morning.  The contents of the court book were explained to the applicant with the assistance of the interpreter booked for today’s hearing.  The applicant had no objection to my receipt of the documents as evidence.  In my view, he has not been prejudiced by the late service of the documents.

3. The only possible legal issue in this case concerns the nominated email address used by the Tribunal to invite the applicant to a hearing and to invite him to apply for reinstatement after his application was dismissed.  That nominated email address is reproduced at page 60 of the court book, which is the second page of the review application completed by or on behalf of the applicant.  The Tribunal used the nominated email address specified in that application.  

4. When I asked the applicant about that address, he told me a number of things.  First, he said that the email address had been nominated by an agent called Mohammad Aslam who wished to conceal his involvement.  When I commented that the email address had no obvious connection to Mr Aslam’s name, the applicant explained that this was to conceal his involvement. 

5. The applicant told me that he had engaged Mr Aslam’s services.  When he first made his visa application he paid Mr Aslam $1,200 for his assistance.  Mr Aslam told the applicant of the decision by the delegate and demanded more money to take the case on review to the Tribunal.  The applicant told me that he dispensed with Mr Aslam’s services and was supported by a friend in his Tribunal application. 

6. The applicant was unable to satisfactorily explain why the nominated email address was chosen.  It does not appear to have been used previously in the process.  As the applicant had apparently dispensed with Mr Aslam’s services by the time the review application was lodged, it does not appear likely that Mr Aslam was responsible for choosing it.

7. Ultimately, the applicant told me that his friend was, in some way, connected to Mr Aslam and that he had paid the friend $500 for his assistance.  The implication was that the friend chose the nominated email address.  The applicant’s statements were made from the bar table and he has not given evidence which might have been tested.  If this matter were being dealt with at a final hearing, I would have invited the applicant to give evidence and he would have been subject to cross-examination.

8. Even if the applicant’s assertions were accepted as true, however, they do not point to any jurisdictional error by the Tribunal.  In his initial oral submissions, the applicant told me that he failed to attend the Tribunal hearing to which he had been invited because he was unable to find transport to the Tribunal venue.  As I pointed out to him, this indicated that he was aware of the hearing invitation and, even if he had not received the email sent to him, he must have received the two SMS reminders sent to his phone.

9. The applicant asserts that he did not receive the invitation to apply for reinstatement because that invitation was sent to the nominated email address which “belonged” to Mr Aslam who was, by that stage, overseas.  Even if that assertion were true, it does not point to an arguable case of agent fraud.  The applicant had dispensed with Mr Aslam’s services and he was under no obligation to tell the applicant anything. 

10. The applicant feels that he has been cheated either by Mr Aslam or by his friend or both.  In my view, the facts, if true, simply point to a case of ordinary misadventure. 

11. The grounds of review advanced by the applicant have no substance.  The grounds are: 

    1.The decision is affected by error.

    2.The decision was made on my application without solid proof.

    3.It is requested to Administrative Appeals Tribunal for reconsideration.

12. I agree with the Minister’s submissions concerning those grounds.

13. Ground 1 is no more than a bald assertion of error.  No error is established either by the Ground, or on the face of either of the Tribunal’s decisions.

14. Section 426A(1A)(b) of the Migration Act applies in circumstances where an applicant is invited to appear before the Tribunal pursuant to s.425 of the Migration Act and fails to appear. The invitation to appear before the Tribunal was dispatched on 12 October 2017 by way of email to the nominated email address.[19] The notice complied with the requirements in s.425A of the Migration Act: the Tribunal gave the applicant notice of the day, time and place of the scheduled hearing; the notice was transmitted by email to the last email address provided to the Tribunal by the applicant in connection with the review (as required by s.441A(5) of the Migration Act); the period of notice was more than the prescribed period;[20] and the notice contained a statement on the effect of s.426A of the Migration Act that if he did not attend the scheduled hearing, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before it, or might dismiss his application without any further consideration of the application or the information before it. As the Tribunal sent the hearing invitation by email, the applicant was taken to have received the email at the end of the day on which it was transmitted.[21] 

    [19] CB 65 - 66

    [20] In accordance with s.441C(5) of the Migration Act, the applicant was deemed to have received the invitation on 12 October 2017, the end of the day on which it was transmitted by email. The prescribed period of fourteen days in regulation 4.35D of the Migration Regulations 1994 (Cth) ended on 24 October 2017.

    [21] Section 441C(5) of the Migration Act

15. The above requirements having been met, s.426A(1A)(b) of the Migration Act permitted the Tribunal to dismiss the application without any further consideration of the application or information before the Tribunal. Pursuant to s.426B, the Tribunal was required to make a written statement setting out the decision and, pursuant to s.426B(5) of the Migration Act, notify the applicant of that decision by one of the methods specified in s.441A of the Migration Act. The Tribunal did so by way of email on 1 November 2017.[22]

    [22] CB 73

16. Under s.426A(1E), the applicant having failed to make an application for reinstatement within the specified fourteen day period, the Tribunal was obligated to confirm the dismissal decision.

17. There is nothing on the face of the Tribunal’s decision, nor in the Tribunal file, to suggest that the Tribunal misinterpreted or did not comply with the legislative requirements in dismissing the proceeding pursuant to s.426A(1A)(b) of the Migration Act. Nor could it be said, in circumstances where the conditions precedent for the exercise of the discretionary power in s.426A of the Migration Act were enlivened, that there was anything unreasonable in the manner in which the Tribunal exercised that power.[23]  Ground 1 is not arguable.

    [23] Minister for Immigration v SZVFW [2018] HCA 30 at [7] – [8] per Keifel CJ; [69] per Gageler J.

18. Ground 2 is entirely misconceived.  The Tribunal made no findings as to the applicant’s claims to fear harm.  No jurisdictional error could be established.

19. Ground 3 does no more than request that the proceeding be remitted to the Tribunal.  It cannot establish any jurisdictional error on the part of the Tribunal.

Conclusion

1. I conclude that the applicant is unable to establish an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  The applicant claims impecuniosity due to unemployment, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. 

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     17 October 2018