FNZ17 v Minister for Immigration

[2018] FCCA 2727

FEDERAL CIRCUIT COURT OF AUSTRALIA

FNZ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2727

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant to him a protection visa – applicant seeks adjournment of final hearing in this Court – no adequate or reasonable explanation for adjournment – adjournment application refused – applicant did not attend scheduled hearing before Administrative Appeals Tribunal – applicant sent two SMS text reminders about scheduled hearing – decision of Administrative Appeals Tribunal to proceed in the absence of the applicant under s.426A of the Migration Act 1958 (Cth) did not lack an intelligible justification and was not irrational or legally unreasonable in the circumstances – Administrative Appeals Tribunal decision not otherwise affected by jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 414, 425, 426A, 426B, 427, 441A

Administrative Appeals Tribunal Act 1975 (Cth), s.2A

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98

Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365

Applicant: FNZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3915 of 2017

Judgment of: Judge Dowdy

Hearing date: 20 September 2018

Delivered at: Sydney

Delivered on: 20 September 2018

REPRESENTATION

The Applicant appeared
in person

Counsel for the Respondents: Ms M. Perotti

Solicitors for the Respondents: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 15 December 2017 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3915 of 2017

FNZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Adjournment Application

1. This matter has just commenced and it became apparent that the Applicant was seeking an adjournment.  He says that the reason that he needs an adjournment is because he does not have the services of a lawyer and he is uneducated.  The simple fact of the matter is that his Application was filed in this Court on 15 December 2017.  It was before the Court on the first occasion on 27 April 2018, when the Applicant appeared in person and consent orders were made to get the matter ready for hearing.  It was then listed for callover on 3 August 2018, when the Applicant again appeared in person and the matter was listed today for final hearing at 10:15 am. 

2. In my view, the Applicant has had more than ample time to obtain the services of a lawyer.  Many applicants in this Court attend hearings without the benefit of a lawyer and the business of this Court would be impossible if matters were routinely adjourned simply to allow an applicant to obtain the services of a lawyer.  There is no evidence as to when the Applicant would be in a position to retain the services of a lawyer, or when he would be ready for a hearing with the benefit of a lawyer if I did adjourn the matter.  I am booked out with hearings to the end of next year and if I adjourn the matter it would have to either stand over to a date early in 2020 or I would have to vacate another matter already set down for hearing and I am not prepared to do that in the absence of any special feature which would mean that the Applicant could have an adjournment.  Accordingly, I refuse the application for an adjournment because I do not consider an adjournment to be in the interests of justice. 

Substantive Application

1. The Applicant is a male citizen of Malaysia having been born on 1 September 1967. 

2. By Application filed in this Court on 15 December 2017, he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 6 December 2017 made under s.426A(1E) of the Migration Act 1958 (Cth) (the Act) to confirm its earlier decision dated 17 November 2017 made under s.426A(1A)(b) of the Act to dismiss on that date his application for review of the decision of the Delegate of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 6 March 2017 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa). 

3. The Applicant had arrived in Australia on 19 December 2016 on an Electronic Travel Authority (Class UD) (Subclass 601) visa and had applied for the Protection visa on 9 February 2017.  He stated in that Protection visa application that he spoke and read but did not write the English language.  

Claims for Protection

1. The Applicant made his claims for protection in his Statutory Declaration which appears to be undated but was received on 9 February 2017 by the Department and his claims were as follows: 

   I was working in Malaysia as security guard. My job was to look after a car showroom – this showroom was selling expensive cars. There was a surveillance video system also working inside and outside the store. One week I was on holidays and the showroom was robbed and robbers took three expensive cars.  There are many groups in Malaysia who steal cars and send these cars to other countries or breaking the cars and then sell car parts in market. When they robbed the store, the alarm did not go on.  The next day, showroom owner called me.  I reached showroom, police were already over there. 

   My boss told him that he was sure I was with robbers in stealing cars.  Police investigated me.  I told police that I was on holidays.  I do not know nothing about the robbery.  The show owner went to Court against me and when police investigated everything, I was not involved in robbery, police gave report.  Seeing report, Courts set me free. But my company boss was still not believing me and was threatening me for severe consequences.  I was fear for my life and I came to Australia to save my life. 

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. In her Decision Record the Delegate summarised the Applicant’s claims for protection. In the result, the Delegate found the Applicant’s claims to be vague and lacking in detail and his claim to fear harm to be clearly of a personal nature. She found that the Applicant had not claimed to fear harm in Malaysia for a Refugee Convention ground and that the Applicant was not a refugee as defined by s.5H(1) of the Act. The Delegate then considered a considerable body of independent country information and concluded as follows:

   While I accept that there are inadequacies in the policing practices in Malaysia, there is nothing in the evidence before me to suggest that the Malaysian government would fail to provide the applicant with the same degree of protection as that afforded to any of its other nationals. 

2. The Delegate then found that she was not satisfied that there was a real risk he would suffer significant harm under the complementary protection criterion as a necessary and foreseeable consequence of his being removed to Malaysia and the Delegate refused to grant to the Applicant a Protection visa. 

Decision of Tribunal

1. On 16 March 2017, the Applicant lodged an application for review of the Delegate’s decision with the Tribunal. He gave his email address, agreed to the Tribunal sending all correspondence by email and provided his mobile telephone number. Then by letter dated 19 October 2017 the Tribunal sent to the email address of the Applicant a letter advising him that it was unable to make a favourable decision on the material then before it and invited the Applicant to appear before it pursuant to s.425 of the Act on 17 November 2017 and that a Malay interpreter would be provided as requested by the Applicant in his application for review.

2. This letter also enclosed, and asked the Applicant to complete and return, the usual Response to Hearing Invitation and advised that if he did not attend the hearing the Tribunal might proceed to make a decision on review without taking any further action to allow him to appear before it, or alternatively might dismiss his application for review without any further consideration.

3. On 9 November 2017, the Applicant sent an email to the Tribunal from his email address requesting the Tribunal to give him a letter which would indicate that his application for review was still being processed by the Tribunal so that he could renew his Medicare card. 

4. Then on 10 November 2017 and 16 November 2017, the Tribunal sent SMS text reminders to the Applicant’s mobile telephone number which he had supplied in his application for review reminding him of the Tribunal hearing on 17 November 2017. However, the Applicant did not appear at the Tribunal hearing. He did not contact the Tribunal forewarning it of his non-attendance or subsequently explaining that non-attendance. By its non-appearance decision of 17 November 2017 the Tribunal dismissed the application for review pursuant to s.426A(1A)(b) of the Act.

5. The non-appearance decision of the Tribunal on 17 November 2017 was as follows:

   The review applicant was invited under s.425 of the Act to appear before the Tribunal on 17 November 2017 at 9:30 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 information before it.

   The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, I am satisfied that the review applicant was properly invited to a hearing via email in accordance with s.441A(5) of the Act. The Tribunal also sent the review applicant two separate SMS reminders about the hearing five business days and one business day before the scheduled hearing. No reason for the non-appearance has been given. 

6. Then by letter dated 20 November 2017, the Tribunal advised the Applicant of its dismissal of his application for review, but indicated that he could apply for reinstatement. The Applicant did not seek reinstatement and on 6 December 2017 the Tribunal, as it was bound to do under s.426A(1E) of the Act, confirmed the dismissal decision of 17 November 2017 and accordingly, by force of s.426A(1F), the decision of the Delegate not to grant a Protection visa to the Applicant was taken to be affirmed.

7. The terms of the confirmation decision of the Tribunal of 6 December 2017 were as follows:

   On 17 November 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.

   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) of the Act. 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.

Application of this Court

1. The Applicant relied on the following verbatim Grounds: 

   1. DECISION WAS MADE WITHOUT SOLID PROOFS

   2. FAIR DECISION PROCESS WAS NOT GIVEN TO APPLICANT

   3. According section s.425 of the migration act 1958, malay translater was not provided to applicant.

   4. TERIBUNAL DID NOT ARRANGE INTERVIEW AND DID NOT CNTACT FOR HEARING BY PHONE OR BY ANY OTHER WAY.

   5. DECISION WAS ONE SIDE. Because the applicant was not given chance for interview. Applicant was waiting for hearing and tribunal sent him decision.

   6. According migration act of 1958 hearing should be given to applicant so applicant can clear all his points about his claim.

   7. YOUR KIND HONOUR IS REQUESTED TO SENT MY APPLICATION BACK TO ADMINISTRATIVE APPEALS TRIBUNAL.

Consideration

Ground 1

1. This Ground fails because the Tribunal did not consider the merits of the Applicant’s substantive claims as made and the issue of proof in relation to those claims is irrelevant.  This Ground fails to establish jurisdictional error.

Ground 3

1. This Ground makes no sense at all.  There was no hearing before the Tribunal at any point because the Applicant did not appear and so there was never any occasion for the provision of a Malay interpreter and this Ground fails to establish jurisdictional error.

Ground 7

1. This Ground does not assert any form of cognizable jurisdictional error and also fails.

Grounds 2, 4, 5 and 6

1. I shall take these Grounds as asserting and attacking as legally unreasonable the Tribunal’s decision under s.426A(1A)(b) of the Act to dismiss the application for review without any further consideration. The exercise of a discretionary power of such a kind is subject to judicial scrutiny in order to determine whether it was exercised in a legally unreasonable way: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Under s.427(1)(b) of the Act the Tribunal has the power to adjourn and review from time to time. The Tribunal is exhorted by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a way that is “fair, just, economical, informal and quick”.   

2. However, these discretionary powers to adjourn a hearing or to proceed with the hearing are to operate economically, informally and quickly and must be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.414 of the Act to review decisions and to give the relevant applicant a meaningful opportunity and a real chance to appear and to present evidence and arguments pursuant to the invitation extended under s.425. In his Application filed in this Court, the Applicant seeks relief only with respect to the confirmation decision of 6 December 2017. However, the problem is that under the legislation the Tribunal was bound to make that decision because the Applicant had not sought reinstatement.

3. The Minister’s lawyers had realised this and in a letter dated 27 April 2018 sent to the Applicant had pointed out that the Application had not sought judicial review of the decision of 17 November 2017 dismissing the application and invited the Applicant to amend his Application to attack the decision of 17 November 2017 and indicating that the Minister would not oppose an application for an extension of time to review the decision of 17 November 2017.  The Applicant never amended his Application in any respect, but in his favour, in substance I think I have to consider his Application to this Court as attacking both decisions, including the dismissal decision of 17 November 2017 and I will proceed on that basis.

4. In my view, the Tribunal did not act in a legally unreasonable way in making either of its decisions.  The decisions of the Tribunal did not “lack an intelligible justification” nor were they “irrational” or “illogical”.  The reasons for the Tribunal so acting are set out in each of its Decision Records.  The Applicant had been advised of the hearing date on 17 November 2017.  The Applicant was sent two SMS text reminders of the Tribunal hearing scheduled for 17 November 2017 and he did not appear. 

5. There is no doubt that the Tribunal sent the invitation to the Applicant to the correct email address given by the Applicant in his application for review and there is no doubt that this was his email address, because he himself, in response to an email communication from the Tribunal of 31 March 2017, sent an email on 9 November 2017 to the Tribunal in which he sought a letter indicating that the Tribunal was processing his application for review so that he could renew his Medicare card.  The basic problem in this case for the Applicant is that he appears to have been quite cavalier in his attitude to progressing his application for review. 

6. He has never given any explanation at all, either to the Tribunal or this Court, why he did not appear at the hearing on 17 November 2017 or exercise his right to seek reinstatement. There is no evidence that he sent a completed Response to Hearing Invitation back to the Tribunal, which if he had, might have indicated to the Tribunal that he had an active interest in his application for review. 

7. The hearing date of 17 November 2017 was, in the words of Hill J in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 at 102 [14]: as “…one of the most important appointments in his life…”. The Applicant was under a personal responsibility to attend in aid of his application for review if he was not precluded for good reason.  As Barker J in Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365 at 372 [56] said in referring to proceedings before the then Migration Review Tribunal:

   [56] What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.

8. In my view, it could not be said that no rational or logical decision-maker could have arrived at the decisions which the Tribunal reached in this case.  There was an intelligible justification for the Tribunal deciding to proceed in the way that it did, because it “had a genuinely free discretion” and freedom “to make the decision” and in that regard its decision did not fall outside of the range of possible acceptable outcomes: see Wigney J and Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at 650 [52]. The Applicant could have availed himself of the opportunity to seek reinstatement, but failed to do so and remained unresponsive.

Conclusion

1. I note that in my view the Tribunal has complied with its obligations under ss.425, 426A and s.426B of the Act in relation to each of its decisions of 17 November 2017 and 6 December 2017. In my view, for the above reasons the Applicant has failed to establish that the decision of the Tribunal of 17 November 2017 is affected by jurisdictional error. The Tribunal was bound to make the decision which it made on 6 December 2017 as there had been no application for reinstatement, and this means that the Application made to this Court is to be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 28 September 2018