FTM17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 775
Federal Circuit and Family Court of Australia
(DIVISION 2)
FTM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 775
File number: MLG 2865 of 2017 Judgment of: JUDGE FORBES Date of judgment: 21 September 2022 Catchwords: MIGRATION – protection visa – failure to respond to hearing invitation – non-appearance at Tribunal – application for reinstatement out of time – no jurisdiction to reinstate application – no error disclosed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Act 1958 (Cth), s 36, 65, 426A, 426B, 430, 441A, 476
Cases cited: Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131
Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 24 May 2022 Place: Melbourne Applicant: In person Solicitors for the First Respondent: Mr Mak, The Australian Government Solicitor ORDERS
MLG 2865 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FTM17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
21 September 2022
THE COURT ORDERS THAT:
1.The application for judicial review filed on 27 December 2017 be dismissed.
2.The Applicant pay the First Respondent’s costs pursuant to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 or as otherwise agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
This matter involves an application under section 476 of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 November 2017 which confirmed an earlier decision of the Tribunal to dismiss the applicant’s application for merits review by reason of the applicant’s non-appearance at a Tribunal hearing on 22 November 2017.
Having heard and considered oral submissions from the applicant and written and oral submissions from the Minister, I am satisfied that the Tribunal’s decision is not affected by jurisdictional error.
I have decided that the application should be dismissed and that the applicant should pay the Minister’s costs.
BACKGROUND
The applicant is a Malaysian national of Tamil ethnicity. He first arrived in Australia on 12 February 2016 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa.
On 4 May 2016, the applicant applied for a Protection (Class XA) (Subclass 866) visa (“the protection visa”) under s 65 of the Act.[1] In his application, the applicant claimed that life would be “difficult” in Malaysia as people of Indian ethnicity are being subject to racial hatred and gang violence at the hands of the Malays. The applicant claimed to have been beaten by the Malays because of his race, and says that he reported the incident to authorities but claims that “no action was taken”.[2]
[1] Court Book (“CB”), pp 12-48
[2] CB, pp 44
On 15 September 2016 a delegate of the Minister (”the delegate”) refused to grant the protection visa on the basis that the applicant failed to meet the requirements under s 36(2) of the Act.[3] The delegate found on the evidence that the applicant was not a person in respect of whom Australia has protection obligations.
[3] CB, pp 55-63
On 10 October 2016 the applicant applied to the Tribunal for review of the delegate’s decision.[4] The application was made electronically through the Tribunal’s online lodgement system[5] and the applicant entered various contact details including his address for service, his mobile phone number and his email address. These details were entered twice on the application.
[4] CB, pp 64-65
[5] Applicant’s affidavit affirmed 27 December 2017 at [6], Annexure C
The following day, the Tribunal corresponded with the applicant via email to acknowledge receipt of his application for merits review of the delegate’s decision. In its letter to the applicant the Tribunal cautions:
“It is important that you:
tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice.”[6]
[6] CB, p 67
On 3 October 2017 the Tribunal extended an invitation to the applicant to appear before it at a hearing scheduled for 22 November 2017, at which the applicant would be afforded an opportunity to give evidence and present arguments relating to the issues in his case.[7] The invitation was sent to the applicant by email to the address he had provided in his Tribunal application. The invitation letter cautioned:
“If you are not able to attend the hearing, you need to advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.”
Moreover,
“If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.”[8]
[7] CB, p 70
[8] CB, p 71
The hearing invitation was accompanied by a standard form fact sheet entitled “Information about hearings-MR Division”.[9] That fact sheet also outlined the consequences of non‑appearance and the right to seek reinstatement in the event the application was dismissed for non-attendance.
[9] Supplementary Court Book (“Supplementary CB”). p 91
On 15 and 21 November 2017, the Tribunal sent the applicant SMS text message reminders regarding the forthcoming hearing to the phone number nominated by the applicant in his application for review. On each occasion, the Tribunal received a notification that the delivery of the SMS text messages had failed.
The applicant did not appear at the Tribunal hearing on 22 November 2017 at 9.30am.[10] The Tribunal hearing notes record the applicant as a “No Show”.[11]
[10] CB. p 72
[11] Ibid
That same day the Tribunal made a decision to dismiss the applicant’s application under s 426A(1A)(b) of the Act (“the non-appearance decision”).[12] In its reasons for decision the Tribunal records its satisfaction that the applicant had been properly invited to a hearing in accordance with s 441A(5), that the invitation had not been returned-to-sender and that two separate SMS reminders had been sent to the applicant’s phone number alerting him to the hearing. In the circumstances, the Tribunal decided to dismiss the application without further consideration of the application or the information before the Tribunal.[13]
[12] CB, p 74
[13] CB, p 76
The non-appearance decision was attached to a covering-letter and both documents were sent to the applicant on 22 November 2017 by email to the email address which had been entered in the Tribunal application form. The applicant concedes that the non-appearance decision was sent to him on that date[14].
[14] Applicant’s affidavit at [7], Annexure D
The covering-letter informed the applicant that he may apply to the Tribunal, in writing, for reinstatement of his application by 6 December 2017 and that he should set out why he had failed to appear and provide any other information he would want the Tribunal to take into consideration when deciding whether the reinstatement application should be granted.[15]
[15] CB, p 74
On 29 November 2017, the applicant applied for reinstatement by way of email to the Tribunal. In his request, the applicant indicated that he had missed the hearing due to his “carelessness”, that he has been busy working and failed to check his email, that he lost his phone a couple of months prior and that he failed to notify the Tribunal of his new contact number.[16] As a result, the applicant says that the SMS text messages and correspondence did not reach him. He asked the Tribunal to consider his “appeal” to schedule a new hearing.[17]
[16] CB, p 77
[17] Ibid
On 1 December 2017, the Tribunal notified the applicant of its decision to confirm the
non-appearance decision (“the confirmation decision”).[18] In its decision record, the Tribunal acknowledged that the applicant had applied for reinstatement of the application within the prescribed 14 day period.[19] However, the Tribunal noted that the applicant’s carelessness was not a reasonable ground on which the Tribunal should grant the applicant’s request that his application be reinstated.[20][18] CB, p 80
[19] CB, p 82
[20] Ibid
On 7 December 2017 the Tribunal received a handwritten letter from the applicant in which he requested that he be permitted to “re-appeal” his case[21]. He cited the same reasons for his non‑attendance at the Tribunal hearing, namely carelessness, a lost phone, long working hours and that he had not paid attention.
[21] Applicant’s affidavit at [10], Annexure G
On 20 December 2017 the Tribunal informed the applicant that it would not reopen the case. The Tribunal referred to its decision of 30 November 2017 and stated that it had no power to take any further action on the review. The applicant received this letter[22].
[22] Applicant’s affidavit at [11], Annexure H
JUDICIAL REVIEW
The application for judicial review was filed with this Court on 27 December 2017 and was supported by an affidavit of the applicant affirmed the same day. That affidavit annexed a copy of the Tribunal’s decision record and several other documents including the hand-written letter to the Tribunal dated 7 December 2017.
The application identifies five grounds of judicial review of the Tribunal’s confirmation decision, as follows:
(1)Administrative Appeals Tribunal dismiss my application for Protection Visa;
(2)Administrative Appeals Tribunal did not reconsider my application for reinstatement, rejected the application for a reason that is “inappropriate” to reopen my case;
(3)The decision made by Administrative Appeals Tribunal was wrong and not adopting a fair process in making the decision;
(4)Seeking for judicial review;
(5)I was not given a chance to re-appeal for my case as the member of Administrative Appeals Tribunal decided not to proceed anymore with my case, and was given a very short timeframe for the decision that has been made by the member.
On 17 January 2018 the first respondent, the Minister, filed a response seeking orders that the application be dismissed and that the applicant pay the Minister’s costs of the proceedings. The Minister contends that the application for judicial review does not establish any jurisdictional error in the decision of the Tribunal dated 30 November 2017.
On 3 October 2018 a Registrar of this Court made orders to enable this matter to be prepared for trial. Those orders required the Minister to file and serve a court book of relevant documents by 17 October 2018. The applicant was afforded an opportunity to file and serve various documents 28 days before the final hearing, including any amended application, a supplementary court book and any written submissions. The Minister was also ordered to file and serve any written submissions or further affidavits 14 days before the hearing date.
In accordance with the Court orders, a court book was filed by the Minister’s solicitors on
16 October 2018.
On 28 August 2020 the applicant filed a notice of address for service which nominated a residential and email address for service of documents. Both addresses differed from those entered on the Tribunal’s online system.
On 10 May 2022 an outline of submissions was filed on behalf of the Minister. The outline contends that each of the 5 grounds relied upon by the applicant lack merit and do not identify any jurisdictional error in the Tribunal’s decision. A supplementary court book was also filed by the Minister on 10 May 2022.
On 17 May 2022 Mr Stanley Ho Chung Mak, a solicitor employed by the Australian Government Solicitor, the Minister’s solicitors, filed an affidavit deposing to the various methods taken by the Minister to ensure that proper service had been effected upon the applicant at his nominated address.
By the time the matter was listed for hearing before me on 24 May 2022 the applicant had not filed any amendment to his application, any supplementary court book or any written submissions.
THE HEARING
At the hearing Mr Mak appeared on behalf of the Minister. The applicant was self-represented but was afforded the assistance of a Tamil interpreter.
The procedure for the hearing was carefully explained to the applicant. He confirmed through his interpreter that he understood the procedure and had no questions to raise about it. The applicant also confirmed that he had received the court book and the Minister’s written outline of submissions.
The Applicant’s Submissions
When asked to address the Court about the basis of his application for judicial review, the applicant began by explaining the circumstances surrounding his failure to attend the Tribunal hearing. The applicant informed the Court that “during that time” he was employed at a farm in Swan Hill and was working very hard, performing very long hours. He says that he did not check his phone or his emails for about a week during that period.
The applicant said that on one occasion whilst he was fruit picking, he had lost his phone. He thinks this occurred in the winter of 2017 as he recalled that it was stone fruit season at the time. The applicant informed the Court that he had lost several phones by that time, as they would often fall out of his pocket whilst fruit picking on the farm and get destroyed by tractors. He said that the phone which he lost during the winter of 2017 contained all the documents relevant to the Tribunal hearing.
The applicant stated that during that period he was “constantly on the move” but that he made a conscious effort to keep checking his emails because he was concerned about his visa status. However, the applicant says that this was somewhat obstructed by the hours of work he was performing at the time which made him very tired, alluding to the fact that he may not have been particularly attentive to his emails. The applicant also stated that communications were difficult because there were network issues in his region and that he had suffered from a hernia during this time.
The applicant argued that the Tribunal could have provided him with an opportunity to be heard if it genuinely wanted to. He explained that his circumstances have changed since the Tribunal’s decision. He is now married and has a two year old child, and if another opportunity is not afforded “everything will come to an end”.
Minister’s Submissions
The Minister relied upon its written submissions filed on 10 May 2022. It is unnecessary to rehearse the detail of those written submissions because they were also substantially addressed orally and the essence of the submissions are also reflected in the course of these reasons.
In relation to grounds 1 and 4, the Minister contended that these grounds are mere statements of fact and fail to raise any jurisdictional error on the part of the Tribunal’s decision.
In relation to the Tribunal’s decision not to reinstate the application for review, it was submitted by the Minister that the onus was on the applicant to advance his application for reinstatement and to provide any material that he seeks the Tribunal rely upon. Relevantly, the Minister referred the Court to the principles outlined by the Full Federal Court in Singh v Minister for Immigration and Border Protection[23] (‘Singh’) where at [28] – [30] the Court stated:
28.Even so, it is for the applicant to advance the application for reinstatement and any material relied upon. After all, such an application is only made in circumstances where the applicant has failed to appear at a scheduled hearing.
29. When s 362B(1C) says that on an application for reinstatement the Tribunal must, if it considers it appropriate to do so reinstate the application, it imposes a statutory responsibility on the Tribunal to form an opinion or make an assessment as to whether reinstatement is 'appropriate' having regard to all of the circumstances advanced to support reinstatement. In such a context, the word 'appropriate' connotes two aspects: fitness and propriety. That is, in order to be 'appropriate', something must be both suited to the particular circumstances as well as sensible, right and proper. In Mitchell v The Queen (1996) 184 CLR 333 at 346, it was said by Dawson, Toohey, Gaurdron, McHugh and Gummow JJ that:
The phrase 'considers … appropriate' indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper.
30. Relevantly for present purposes, the use of the word 'appropriate' requires the Tribunal to make an assessment of all of the matters that are advanced to support reinstatement. If more is raised on an application to reinstate than the single issue as to whether the applicant was notified of the scheduled hearing, then the Tribunal could not properly form a view as to whether reinstatement was appropriate by confining consideration to the facts concerning notification.[24]
[23] Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459
[24] Ibid at [28] – [30]
In other words, when considering an application for reinstatement the Tribunal must form an opinion as to whether reinstatement is “appropriate”, having regard to the circumstances advanced by the applicant in support of reinstatement. The word “appropriate” denotes two aspects, fitness and propriety.
By Ground 2 of the application for review the applicant contends that the Tribunal did not consider his application for reinstatement. The Minister says that in its assessment the Tribunal did consider all of the matters advanced in the applicant’s reinstatement request sent to the Tribunal on 29 November 2017. The applicant never revealed issues relating to poor internet connection, hernia or working long and arduous hours, as they were matters only raised by the applicant during the hearing.
The Tribunal determined that the applicant’s “carelessness” in failing to advise the Tribunal of his new contact details was not a reasonable ground on which to grant the applicant’s request for reinstatement of his application. As there was no other evidence before the Tribunal aside from his request for reinstatement dated 29 November 2017, the Minister submitted that the Tribunal’s conclusion was open to it, and therefore the applicant’s Ground 2 is without merit.
In Ground 3 the applicant contends that the Tribunal’s decision was “wrong” and that it did not adopt a fair process. The Minister observed this ground to be vague and one which fails to disclose an arguable jurisdictional error. Insofar as this ground is directed to the merits of the application, the Minister submits that this invites the Court to embark on an impermissible merits review.
In respect of the applicant’s contention that the Tribunal did not adopt a fair process, the Minister again submits that it is unclear whether the applicant is seeking to challenge the non‑appearance decision or the confirmation decision. Regardless, the Minister says that on both occasions the Tribunal complied with its statutory obligations and afforded the applicant procedural fairness.
The Tribunal’s power to dismiss an application for review is predicated upon the Tribunal first inviting the applicant to a hearing under s 425 of the Act, and appropriately notifying the applicant to attend the hearing. The Minister submits that the Tribunal did invite the applicant to a hearing by way of email dated 3 October 2017 which was sent to the applicant’s nominated email address as listed on his application for review with the Tribunal. Pursuant to s 441A(5) of the Act, the invitation is taken to be satisfactorily transmitted if one method, such as email, is used. Therefore proper notification was given by the email even though SMS reminders which were sent to the applicant’s nominated mobile phone number failed to reach him.
As the applicant failed to attend the hearing, the Tribunal was empowered to dismiss the application and make its non-appearance decision.[25]
[25] Migration Act 1958 (Cth) (“The Act”), ss 426A(1)-(1A)
The Minister submitted that the Tribunal was obliged under s 426B(6) to allow the applicant to apply to the Tribunal for reinstatement by 6 December 2017. This opportunity was afforded to the applicant by virtue of its email to the applicant dated 22 November 2017. The applicant received that email and he did apply for reinstatement. The Tribunal considered the matters advanced by the applicant in his request for reinstatement and found that it would not be appropriate to reinstate his application and subsequently made its confirmation decision.
The Minister says that Ground 3 cannot succeed as the Tribunal did comply with procedural fairness obligations under the Act when making both decisions.
By Ground 5, the applicant claims he was not given a chance to “re-appeal” his case and was given a very short timeframe for the decision. The Minister submits that this ground also fails to disclose jurisdictional error in the Tribunal’s process.
The 14 day timeframe provided for reinstatement which the applicant complains is “very short” is prescribed by s 426A(1)(b) and (1E) of the Act. In any event, the applicant was able to make an application for reinstatement well within that timeframe. The Minister submitted that once the confirmation decision was made, the Tribunal was functus officio and had no further power to vary the decision.[26] For that reason the applicant’s complaint that the Tribunal did not afford him a chance to “re-appeal” has no proper basis and Ground 5 cannot succeed.
[26] The Act, s 426A(1C), (1F); s 430(2A)
The Applicant’s Submissions in Reply
In reply to the Minister’s submissions, the applicant informed the Court that once he received the Tribunal’s notification of dismissal for non-attendance, and after he had applied for reinstatement, he travelled to Melbourne to seek help with writing a further letter. He claimed that he visited the Melbourne CBD to find someone to assist him, but that it was a public holiday and the Immigration Office was closed. The applicant could not recall the precise date that this occurred. However, the applicant referred to a letter (presumably Annexure G to his affidavit of 27 December 2017) which he said he had sent to the Tribunal.
The applicant agreed that the letter was not sent to or received by the Tribunal until 7 December 2017. However, he says that it was a “narrow miss” and the Tribunal could have given him a further opportunity.
CONSIDERATION
I have read the Minister’s written submissions and carefully listened to the parties’ oral submissions.
The only decision which falls to be reviewed in this application is the confirmation decision of the Tribunal dated 30 November 2017, which affirmed the Tribunal’s non-appearance decision made on 22 November 2017. To obtain relief from this Court, the applicant must show jurisdictional error in the Tribunal’s confirmation decision.
In my opinion the application for judicial review must be dismissed for the reasons articulated at [17]-[27] of the Minister’s written submissions, elements of which I reproduce below.
Grounds 1 and 4
I agree with the Minister’s submission that Grounds 1 and 4 do no more than state the nature of the applicant’s application and do not allege any error on the part of the Tribunal. Those grounds should be dismissed.
Ground 2
Ground 2 contends that the Tribunal did not consider the applicant’s reason for reinstatement.
At the Final Hearing, the applicant submitted that the Tribunal could have provided him with another opportunity to attend a hearing if it genuinely wanted to. However, the applicant did not elaborate or describe the nature of the Tribunal’s failure to consider his reason for reinstatement. He did not suggest, for example, that the Tribunal made the confirmation decision without regard to the matters he advanced in his email requesting reinstatement.
At [16] of these reasons I briefly describe the applicant’s application for reinstatement made to the Tribunal on 29 November 2017. In full the application to reinstate stated:
“Dear Sir / Madam
To whom it may concern,
I am writing regarding the above matter, I suppose to attend the scheduled hearing on 22nd November 2017. I missed it due to my carelessness. Been busy working and never checked my email. I admit my mistake. Would like to make a humble request to reschedule my hearing date again so I could attend.
I lost my phone a couple months ago and had a new number. At the same time I moved to Nyah West due to work. I didn’t update those changes with AAT. All the text message and correspondence never reach me.
That’s my fault. My apologies for those issue.
Please do kindly consider my appeal for a new hearing schedule. Honestly, I had explained all the circumstance happened.
Awaiting for your best reply.
Thank you”[27]
[27] CB p 77
The Tribunal’s obligation to afford an applicant an opportunity to reinstate their application is found in 426A(1B) of the Act and the Tribunal undoubtedly has power to reinstate an application as a matter of discretion under s 426A(1C). In Singh[28], which dealt with a materially identical procedure in Part 5 of the Act, the Full Court said at [10]:
On an application for reinstatement under s 362B(1C), the Tribunal is required to consider whether it is 'appropriate' to reinstate the application. If the Tribunal is not of that view then the binary nature of s 362B(1C) means that it is required to decide to dismiss the application. It has no further discretion to reinstate. If it decides to dismiss then it is required to do so by written statement…
[28] Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459
As the Minister correctly submitted, the term “appropriate” requires the Tribunal to make an assessment of all of the matters that are advanced by the applicant to support reinstatement.[29] It is for the applicant to advance the application for reinstatement and any material he wishes to rely upon. After all, such an application is only made in circumstances where the applicant has failed to appear at a scheduled hearing.[30]
[29] Ibid
[30] Ibid
Here, the Tribunal was left unsatisfied that it was “appropriate” to reinstate the application. The Tribunal reached its finding after considering the circumstances advanced by the applicant, namely that it was his “carelessness” in forgetting to update the Tribunal with his contact details and in failing to check his emails due to being busy at work that caused him to miss the hearing. On a fair reading of the decision record it is clear that the Tribunal engaged with the matters raised by the applicant. The Tribunal found that his explanation was not a reasonable ground on which to reinstate his application. It was entirely open to the Tribunal to make such a finding.
For the reasons set out above, Ground 2 must fail.
Ground 3
Ground 3 alleges that the Tribunal’s decision was wrong and that it did not adopt a “fair process in making the decision”. The applicant did not articulate the nature of the unfairness in either his application for review or in his oral submissions to the Court.
The Minister submits that Ground 3 invites the Court to undertake an impermissible merits review. Insofar as the applicant seeks a review of the Tribunal’s decision, that falls beyond the jurisdiction of this Court.[31]
[31] Section 476(2) of the Act
I accept the Minister’s submission that the Tribunal complied with its procedural fairness obligations under the statutory scheme. Whilst the Minister’s written submissions shed light on the Tribunal’s compliance with both the non-appearance decision and the confirmation decision, I need only turn my mind to the confirmation decision which forms the subject of this application for judicial review.
If an applicant is invited to appear before the Tribunal, but does not do so, the Tribunal has the power to make a decision on the review without taking further action to allow the applicant to appear or it can dismiss the application without any further consideration of the application or information before it.[32] If the latter course is taken by the Tribunal, as was the case here, the applicant must be notified of his statutory right to apply for reinstatement within 14 days after the dismissal.[33] The applicant was notified in writing that he could seek reinstatement within 14 days of 22 November 2017.[34] It was open to the applicant to make an application for reinstatement and it is not disputed that he did so on 29 November 2017.
[32] Section 426A(1A) of the Act
[33] Section 426A(1B) of the Act
[34] CB p 74
It is clear that the applicant was correctly notified of his right to apply for reinstatement and that the Tribunal satisfied its procedural fairness obligations under s 426A and 426B. I do not accept the applicant’s submission that he was denied fairness, either because the Tribunal was wrong or because the Tribunal did not adopt procedural fairness in reaching its decision.
Ground 3 must fail.
Ground 5
Finally, ground 5 contends that the Tribunal failed to give the applicant a chance to re-appeal his case and that he was “given a very short timeframe for the decision that has been made by the member.”
The 14 day timeframe to seek reinstatement of an application is prescribed by the Act. In any event the applicant made an application for reinstatement within that period. As such, this complaint cannot be made out.
With respect to the contention that the Tribunal failed to give the applicant an opportunity to re-appeal his case, the Tribunal determined that it was functus officio once the confirmation decision was made on 1 December 2017 and there was no power for it to take any further action on the review.
There is some evidence that on 7 December 2017 the applicant approached the counter at the Administrative Appeals Tribunal to enquire about his matter, and confirm the non-attendance decision which had been emailed to him.[35] This is recorded in a case note prepared by the Tribunal.[36] At that time, the applicant was informed by the Tribunal that the confirmation decision had already been made and the applicant was told that if he wanted to make a comment he could put it in writing and submit it to the Tribunal. The applicant submitted a letter to the Tribunal that day which was stamped as having been ‘received’ ‘by hand’ on 7 December 2017. In substance, the applicant’s letter was in the same terms as his request for reinstatement.[37]
[35] Supplementary CB, p 89
[36] Ibid
[37] Supplementary CB, p 83
The applicant did not inform the Court in his affidavit or submissions that he attended the Tribunal’s office on 7 December 2017 or that he, at any stage, submitted a hand-written letter over the counter to the Tribunal. The applicant’s claim that he sent a letter to the Tribunal by express post at some point upon his return to Melbourne is not corroborated.
A Tribunal is deemed functus officio when its decision and reasons are incapable of recall or amendment as they have been externally communicated to the applicant or to interested parties.[38] In this case, the Tribunal became functus on 30 November 2017 when it transmitted the confirmation decision to the applicant via email. Pursuant to s 430(2)(a) the Tribunal had no further jurisdiction.
[38] Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131
The applicant’s letter to the Tribunal dated 7 December 2017 could not re-enliven jurisdiction. Therefore, I dismiss ground 5 of the application for review.
CONCLUSION
For the reasons set out above, the applicant has not demonstrated jurisdictional error in the Tribunal’s confirmation decision.
Accordingly, the application for judicial review filed on 27 December 2017 will be dismissed and the applicant should pay the Minister’s costs pursuant to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 or as otherwise agreed.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 21 September 2022
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