FNV17 v Minister for Immigration
[2020] FCCA 535
•12 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FNV17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 535 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for Protection (Class XA) visas – whether the Tribunal acted unreasonably in considering the application for reinstatement – whether the Tribunal denied the applicants procedural fairness by reason of there being a reasonable apprehension of bias – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 426A, 426B, 438 |
| Cases cited: AZAFB v Minister for Border Protection [2015] FCA 1383 |
| First Applicant: | FNV17 |
| Second Applicant: | FNW17 |
| Third Applicant: | FNX17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3914 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 9 March 2020 |
| Date of Last Submission: | 9 March 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 12 March 2020 |
REPRESENTATION
| Counsel for the Applicants: | Ms Grotte |
| Solicitor for the Applicants: | Michaela Byers |
| Counsel for the Respondents: | Ms Graycar |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The applicants to pay the first respondent’s costs fixed in the amount of $7206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3914 of 2017
| FNV17 |
First Applicant
| FNW17 |
Second Applicant
| FNX17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are citizens of China. They consist of a wife, husband and son. The applicants arrived in Australia on 1 December 2014, initially on Visitor (Class FA) (subclass 600) visas. The applicants applied for Protection (Class XA) visas on 20 February 2015. The first and second applicant claim to fear harm in China on account of their Falun Gong adherence. The third applicant was included in the application as a member of the family unit and raised no claims of his own.
On 29 January 2016, a delegate of the Minister refused to grant the applicants protection visas. The applicants sought review of the delegate’s decision at the Administrative Appeals Tribunal (“the Tribunal”). In that application, they nominated a registered migration agent as their representative and gave an email address for that representative in relation to any correspondence from the Tribunal. The first applicant also gave a mobile telephone number by which contact could be made with her.
By letter dated 11 October 2017, sent to the applicant’s representative at the nominated email address, the applicants were invited to attend a hearing before the Tribunal on 13 November 2017. No response was received to that invitation.
The first applicant was also sent two SMS reminders regarding the hearing. The first reminder was sent on 6 November 2017 and the second on 10 November 2017. Those SMS reminders stated:
Reminder - Your AAT hearing is on 13/11/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
The applicants did not attend the hearing scheduled on 13 November 2017. The Tribunal dismissed the application that day under s 426A(1A)(b) of the Migration Act 1958 (Cth) (“the Act”). A copy of that decision was enclosed with a letter which was sent to the applicant’s representative at the email address nominated, on the same day that the hearing was scheduled.
On 14 November 2017, the applicants applied for reinstatement of the application. The applicants’ representative explained that she did not receive the hearing notification as it had gone into her junk email. The applicants also provided submissions in support of the substantive protection claims.
In a decision dated 17 November 2017, the Tribunal confirmed the decision to dismiss the application. The applicants now seek judicial review of the Tribunal’s decision to not reinstate their application.
The Administrative Appeals Tribunal’s Decision
The Tribunal’s decision is relatively short. After setting out the history of the matter, the Tribunal notes that the matter was dismissed on 13 November 2017 for non-attendance. The applicants were advised that they could make an application for reinstatement within 14 days. While the application for reinstatement was received within the requisite 14 day period, the Tribunal thought it appropriate not to reinstate the application.
The Tribunal notes it had received a letter from Migration Education Services Pty Ltd, as the applicant’s registered migration agent. That letter stated:
On receiving the notification I checked Ms C’s file and we did not receive the hearing invitation form. I checked our emails and found the AAT email in our ‘junk file’. Ms C’s name must have caused the email to be sent to junk. I normally check the junk file, however the email system has not been looked at… I respectfully submit that Ms C was not at fault. My office systems failed to detect the AAT email inviting her to a hearing and I am at fault.
At paragraph 6, the notification that the agent referred to was the initial dismissal notice. The Tribunal found it curious that the migration agent was able to receive the initial dismissal notice by email but not the invitation hearing notice. The Tribunal accepted that what the agent had written was truthful, as a migration agent would not mislead the Tribunal. The Tribunal noted that if an agent elects to receive correspondence from the Tribunal by email, that agent has to take all necessary steps to ensure that the correspondence can actually be received in a way that it is not incorrectly filed as junk emails.
The Tribunal noted however, that prior to the matter being dismissed on 13 November 2017, the Tribunal sent an SMS to remind the applicants of the hearing, both on 6 November 2017 and 10 November 2017. The text messages were sent to the first applicant’s mobile phone number. The Tribunal noted that it also received, by post on 15 November 17, additional documents from the migration agent but noted those documents did not explain why the applicants did not attend the hearing
The Tribunal concluded that the applicants were reminded twice about the hearing by SMS and could have contacted the telephone number contained within the messages to find out details of the hearing or contacted their migration agent.
Whilst the Tribunal was mindful of the effect of a decision to not reinstate, the Tribunal did not think reinstatement was appropriate as it came to the conclusion that the applicants received adequate notice of the hearing.
Accordingly, on 13 November 2017, the Tribunal refused to reinstate the application.
Grounds of Appeal
Three grounds of appeal appear in the originating application lodged with the Court. Ground 1 was not pressed at the hearing. The remaining 2 grounds are as follows verbatim (less particulars, which are lengthy):
1) Not pressed
2) The AAT acted unreasonably in considering the application for re-instatement and thereby fell into jurisdictional error.
3) The AAT fell into jurisdictional error in that the AAT denied the applicant procedure fairness by reason of there being reasonable apprehension of bias.
The Applicants’ Submissions
Ground 2 asserts that the Tribunal acted unreasonably in considering the application for reinstatement. It was submitted by Counsel for the applicants that it is well-settled that a discretionary power conferred by statute is subject to the condition that it must be exercised reasonably (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).
Section 426A of the Act sets out the powers of the Tribunal where an applicant does not appear. Section 426B of the Act requires that a written statement be provided in the case of the non-appearance decision and in the case of a decision to reinstate an application.
It was submitted on behalf of the applicants, that the Tribunal had the power to reschedule a hearing to enable the applicants to appear before it, so the Tribunal is able to reschedule a hearing in circumstances if it considers it appropriate to reinstate an applicant’s application.
It is acknowledged that the migration agent was unaware, for reasons that are outlined above, of the hearing date. It appears from the Tribunal’s case notes that the first applicant did not contact the Tribunal with an explanation as to the SMS messages until 1 December 2017, three days after the expiry of the 14 day period. This means that at the time of the decision to affirm the decision to dismiss, the Tribunal did not know the first applicant’s explanation as to not being aware of what the text messages were about and her explanation that she did not know what the acronym ‘AAT’ stood for. Counsel on behalf of the applicants also submitted that there was no evidence before the Tribunal, at the time of dismissal, that those texts had in fact been received, delivered and read by the by the first applicant.
It was submitted, on behalf of the applicants, that there was no reason for the Tribunal not to accept the explanation offered by the applicants’ migration agent. It is submitted that the Tribunal unreasonably inferred that the migration agent was not truthful.
It was submitted that the Tribunal was not without fault as it continued to address correspondence to another person despite being informed that the person was no longer with the migration agent’s firm and continued to send letters to the wrong address.
Counsel submitted that in these circumstances it was unreasonable for the Tribunal to deny the applicants an opportunity, that is available under the legislation, to give evidence and present arguments at an oral hearing.
It was submitted that in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, the High Court confirmed procedural obligations on the Tribunal in the conduct of its obligation to review, which includes the obligation imposed by s 425 of the Act to invite the applicants to a hearing and to give the applicants clear particulars of any information the Tribunal considers would be the reason or part of the reason for affirming the decision under review.
It was also submitted that in this matter, the Tribunal was provided with information that contained confidential information and that the Tribunal had an obligation to disclose the existence of a certificate. It was submitted that the fact that it did not disclose it, is legally unreasonable as this has the appearance that it may have influenced the Tribunal in not reinstating the applications.
In relation to Ground 3, this ground alleges that there is a reasonable apprehension of bias in respect of the decision not to reinstate the application. This is based on the following matters:
a)The inference that the migration agent may not have been truthful when there was no evidence from which to draw such an inference.
b)The finding that the first applicant understood the text messages because she had been an English translator in China.
c)The finding that the additional documentation provided by the migration agent did not contain an explanation as to why the applicants did not attend the hearing. This is clearly incorrect as the explanation proffered stated the agent had not received the notification of the hearing and so, logically, had not informed the applicants of the hearing.
d)The finding by the Tribunal that the text messages were an adequate means of communication.
e)The fact that the Tribunal confirmed the dismissal prior to the expiry of the 14 day time period prescribed within which the applicants could apply for reinstatement.
f)Forwarding the final decision to affirm the dismissal one day after the 14 day prescribed time period.
It is submitted that the above is evidence that the Tribunal did not bring an impartial mind to bear on the decision to affirm the dismissal.
The First Respondent’s Submissions
Ground 2 contends that the Tribunal acted unreasonably in considering the reinstatement application. The question of whether the Tribunal acted unreasonably in the exercise of its statutory power in relation to reinstatement is governed by case law that makes it clear that the process of review of legal unreasonableness “will be inevitably fact dependent” (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [48]).
The test for unreasonableness is “necessarily stringent” (see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] per Kiefel CJ) (“SZVFW”). That case involved a judicial review decision where the Federal Circuit Court had found that the decision of the Tribunal to proceed to dismiss a matter without taking further steps to contact the applicants who did not attend, was legally unreasonable. All members of the High Court found, allowing the appeal, that the Tribunal did not act unreasonably in dismissing the application. Kiefel CJ stated at [8] that the Tribunal was entitled to proceed to exercise its power to dismiss pursuant to s 426A of the Act and that it was difficult to see how doing so was unreasonable.
In relation to the particulars, Particulars (a) and (b) set out factual matters.
At particular (c) it is said that the Tribunal “inferred” that the migration agent was not truthful. It is not clear how this claim is said to arise, nor how it is said to meet the legal test of unreasonableness.
By particular (d), it is contended that Tribunal was required to put to the applicant for comment, the statement that the first applicant was an English translator in China. No statutory obligation to do so was identified and in any event the Tribunal was referring to the claim made by the first applicant in an interview that she had worked as a translator from Chinese to English and vice versa for some 27 years.
Particular (e) merely sets out paragraph 10 of the Tribunal’s reasons. Nothing is put that identifies any error arising from the contents of that paragraph. Given that the applicant has an onus in judicial review proceedings to make out any ground of review, this particular cannot take the matter further (see BVD17 v Minister for Home Affairs [2019] HCA 34 at [38]).
The first part of particular (f) repeats the first ground, albeit casting it as “unreasonable” in that it is said to be unreasonable to have dismissed an application on the fourth day of what is erroneously described as a “prescribed period” of 14 days. This argument is misconceived.
As for the second part of particular (f), it is apparently contended to be unreasonable to decide that “adequacy of notice by two text messages was appropriate” given the fact that the hearing concerned an application for a protection visa. First this omits the fact that a written notice was also sent to the address of the authorised representative. Second there is no error in sending text messages as a reminder of hearings (see CER15 v Minister for Immigration and Border Protection [2016] FCA 1057 at [42] per Markovic J) (“CER15”) nor is there any suggestion the text messages were not received. It is apparently contended that no reasonable Tribunal would not have permitted reinstatement.
In relation to Ground 3, it appears the assertion is that the fact-finding was “capricious, arbitrary… etc…” and “the preponderance of findings selective of material or conclusions going one way only such that a fair-minded and informed person might reasonably apprehend the decision-maker might not have brought an impartial mind to bear on the decision”.
It is well established that an allegation of reasonable apprehension of bias must be “distinctly made and clearly proven” (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. There is simply nothing before the Court which demonstrates that a fair-minded lay person might think that the Tribunal did not bring a fair and impartial mind to the making of the decision. Further, it has also been held to be a rare case in which a reasonable apprehension of bias could be made out on the basis of the Tribunal’s reasons alone (see Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303. It was submitted on behalf of the first respondent that none of the particulars establish a reasonable apprehension of bias.
Consideration
Ground 2 asserts that the Tribunal acted unreasonably in not reinstating the application. The Tribunal determined that the migration agent had been properly notified of the time and date of the hearing. The Tribunal found 2 x SMS messages were sent to the first applicant as reminders. It is not suggested they were not received. It is not for the Tribunal to proceed on the basis that they were not received. They were sent to the first applicant’s phone number as indicated by the relevant records. The suggestion by the first applicant that the Tribunal should have had evidence that the SMS messages were received before deciding not to reinstate, seeks to reverse the onus of proof in this matter.
In terms of the relevant case law, I was referred to AZAFB v Minister for Border Protection [2015] FCA 1383 (“AZAFB”), a decision of North ACJ. In that case it was held that the decision to proceed in the absence of the applicant was legally unreasonable as the Tribunal had not attempted to contact the applicant by telephone when he failed to appear at the hearing. That case can be distinguished from this one, as the only communication with the applicant was a letter inviting the applicant to attend the hearing. The practice of sending SMS reminders was not apparently in use at that time.
In CER15, Markovic J considered a similar matter, however in that case the SMS reminders had been sent. His Honour noted that in Kaur v Minister for Immigration and Border Protection [2016] FCA 132 (“Kaur”), Perry J found that AZAFB could be distinguished due to the issue of the SMS reminders and that a decision to continue in the absence of the applicant was not legally unreasonable. Markovic J followed Kaur, finding that where attempts had been made to contact the applicant, including by SMS, it could not be said that the decision to continue in the applicant’s absence lacked an evident and intelligible justification.
Counsel for the first respondent submitted that in any event, the cases referred to above had been overtaken by the High Court in SZVFW. While each of the learned Judges in this matter came to the same conclusion regarding the power under s 426A of the Act, perhaps the best expression of the law was that of Kiefel J at paragraph [15] where the following was said:
The crux of the primary judge’s reasoning concerning the exercise of the power given by s 426A appears to be that the Tribunal should have exercised it in the respondents’ favour because, in a practical sense, it could have done so. This analysis failed to identify an unreasonable decision in the sense explained above. The requirement to be implied in a provision such as s426A, that a decision-maker act reasonably, does not require the decision to be one which is advantageous to the person who is the subject of it.
Applying this case law, I cannot accept that the decision of the Tribunal not to reinstate is tainted by legal unreasonableness. As pointed out by the first respondent, legal unreasonableness is fact dependant, will only occur in rare circumstances and is necessarily stringent.
There is no requirement for the Tribunal to engage in the merits of the application. The impact of the decision not to reinstate was, although not explicitly referred to in the decision record, the gravamen of the decision.
There was a submission on behalf of the applicant of further evidence of unreasonableness in that there was a certificate issued under s 438(1)(b) of the Act and that there is an appearance it may have influenced the Tribunal’s decision not to reinstate. This cannot be sustained. There is simply no evidence that the existence of the certificate had any impact on the Tribunal’s decision, or in fact that it had any relevance to the decision.
The fact that the applicants disagrees with the outcome of the Tribunal’s decision is not evidence of legal unreasonableness. It was within the relevant ‘decisional freedom’ of the Tribunal to either accept or decline the application to reinstate. There is nothing capricious, arbitrary, illogical or irrational in the decision of the Tribunal. The fact that the decision might be considered harsh does not ground legal unreasonableness. The matters that were put to me by the applicants, with respect to the merits of the decision not to reinstate, were not matters that evidenced legal unreasonableness.
Ground 3 asserts bias. I am not satisfied that any of the particulars relied upon can sustain the ground. I agree with the first respondent that there is nothing within the decision record that might cause a fair minded observer to think that the Tribunal did not bring a fair and impartial mind to the making of the decision not to reinstate.
This ground simply seeks to assert bias on the basis that the decision must be biased as the applicants do not agree with it. There is no evidence that can sustain this allegation. If anything this and the preceding ground simply seek to invite the Court to engage in impermissible merits review on the basis that the Court might find the decision harsh.
Conclusion
Accordingly, no jurisdictional error is made out.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 12 March 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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