Gajjala v Minister for Immigration
[2018] FCCA 1145
•8 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAJJALA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1145 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – dismissal for non-attendance at Tribunal hearing – confirmation of the dismissal decision made prematurely but relief refused on account of futility – no application for reinstatement made within time – in the circumstances, the Tribunal had and would have no option but to confirm the dismissal decision. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.359, 360, 362B, 362C, 379C, 379G |
| Cases cited: BBP15 v Minister for Immigration [2018] FCA 501 BKO16 & Anor v Minister for Immigration & Anor [2018] FCCA 600 Minister for Immigration v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 SZBYR v Minister for Immigration (2007) 235 ALR 609 |
| Applicant: | SRINIVAS REDDY GAJJALA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2105 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2018 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms N Laing |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application lodged on 4 July 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2105 of 2017
| SRINIVAS REDDY GAJJALA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Gajjala, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 June 2017. The Tribunal confirmed an earlier decision by it to dismiss Mr Gajjala’s review application on account of his non-attendance at the hearing to which he had been invited. Background facts relating to this matter are set out in the Minister’s submissions, filed on 26 April 2018.
Mr Gajjala applied for a subclass 485 visa on 15 March 2016.[1] The application was refused by a delegate of the Minister (delegate) on 15 July 2016.[2] Mr Gajjala applied to the Tribunal on 5 August 2016.[3]
[1] Court Book (CB) 1-11
[2] CB 29-31
[3] CB 44-45
On 23 February 2017, the Tribunal invited Mr Gajjala to attend a hearing scheduled for 21 April 2017.[4] On the day of the scheduled hearing Mr Gajjala sought an adjournment through his migration agent.[5] The request was granted and the hearing was rescheduled for 15 May 2017.[6]
[4] CB 50-54
[5] CB 61-69
[6] CB 70-80
Mr Gajjala did not attend the rescheduled hearing on 15 May 2017.[7] The Tribunal dismissed his application pursuant to s.362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act) on the same day (non-appearance decision).[8] The non-appearance decision was sent to Mr Gajjala’s representative on 22 May 2017.[9] The accompanying correspondence notified Mr Gajjala that he had until 5 June 2017 to apply for reinstatement of the application.[10]
[7] CB 84
[8] CB 93
[9] CB 68-93
[10] CB 90
Mr Gajjala did not apply for reinstatement. The Tribunal confirmed the decision to dismiss the application on 5 June 2017 (confirmation decision) and notified Mr Gajjala by email to his agent on 6 June 2017.[11]
[11] CB 94-99
Relevant legislation
Section 362B(1A)(b) of the Migration Act allowed the Tribunal to “by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal” after Mr Gajjala did not appear at the hearing to which he was invited under s.360.
The hearing invitation was transmitted on 21 April 2017.[12] Mr Gajjala was deemed to have received the communication on the same date.[13]
[12] CB 70
[13] section 379C
The non-appearance decision was sent by email and deemed to have been received by Mr Gajjala on 22 May 2017.[14] He therefore had until 5 June 2017 to apply for reinstatement.[15]
[14] CB 88
[15] section 362B(1B)
The Tribunal confirmed the dismissal of the application at 1.02pm on 5 June 2017.[16] Had Mr Gajjala applied for reinstatement between that time and close of business on that day, the Tribunal would have been obliged to consider the application and a failure to do so would have resulted in jurisdictional error. Likewise, if the confirmation decision had been notified before the period within which reinstatement could be sought expired, and if Mr Gajjala had been deterred from seeking reinstatement, a jurisdictional error would have resulted.
[16] CB 99
However, Mr Gajjala was notified of the confirmation decision on 6 June 2017.[17] As he had not applied for reinstatement by the end of 5 June 2017, the Tribunal was in any event bound to confirm the decision to dismiss the application on 6 June 2017, when the written statement was in fact sent to Mr Gajjala.[18] Therefore, to the extent that the Tribunal erred in purporting to confirm the dismissal on 5 June 2017, it would not be an error warranting the intervention of this Court if it is clear that the error had no bearing on the outcome of the review.[19]
[17] CB 94
[18] section 362B(1E)
[19] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]; SZBYR v Minister for Immigration (2007) 235 ALR 609 at [28]-[29], [77] and [91]
The delegate’s decision was taken to be affirmed by reason of the Tribunal’s confirmation of the decision to dismiss the application.[20]
[20] section 362B(1F)
The present proceedings
These proceedings began with a show cause application lodged on 4 July 2017, on which Mr Gajjala continues to rely. The grounds in that application are:
1. The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.
Particulars:
a.The Applicant matter was remitted to the Second [Respondent] and the Tribunal decided to invite the Applicant to a hearing on 15 May 2017. As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time framed to have a hearing allocated by the Second Respondent ("Tribunal").
b.The Tribunal was bound by s359 of the Migration Act 1958 to invite the applicant to provide further information. If the information was submitted to the satisfaction of the Tribunal, then a hearing might not have been required and a favourable decision could have been made. In the period between lodgement and decision, the Second Respondent took no action and did not issue a s 359 letter.
c.The Tribunal failed to invite the Applicant to provide further information and dismissed the Application when the Applicant was unable to attend the hearing without inviting reasons.
d. The Tribunal gave 14 days to reinstate the Application. The Applicant sent a fax to the Tribunal stating reasons why he could not attend and requested the Tribunal to reinstate the Application. The Tribunal did not consider the fax but dismissed the Application on 05 June 2017.
2.The Second Respondent made jurisdictional error under s361(3) of the Migration Act 1958 in that it failed to have regard to the Applicants' fax sent to the Tribunal explaining reasons for not attending the hearing on 15/05/2017 and requesting the Tribunal to reinstate the Application. The Tribunal did not mention the fax at all in its decision.
3.The Tribunal in paragraph 2 of the Decision Record has mentioned the date of dismissal of the Application to be 15 May 2107 which is incorrect.
Particular (d) to Ground 1 and Ground 2 makes reference to a facsimile said to have been sent by or on behalf of Mr Gajjala to the Tribunal seeking reinstatement of his review application. However, when I questioned Mr Gajjala about that, he told me that this was in fact, a mistake and confirmed that no reinstatement application had been made. In short, there was no such facsimile. It is apparent from [4] of the confirmation decision that no facsimile of this nature was received by the Tribunal.[21]
[21] CB 100
Mr Gajjala, in his oral submissions, asked for more time in order to support his case. There is, in my view, no purpose to be served by granting him further time, and I declined that request.
The third ground in the application makes the valid point that there is a timing problem with the confirmation decision. The confirmation decision was made on 5 June 2007 which was the last day for seeking reinstatement of the review application following notification of the earlier non-appearance decision on 22 May 2017. In short, the Tribunal made its confirmation decision prematurely.
The Minister concedes that by doing so, the Tribunal fell into jurisdictional error. However, the Minister submits that the Court should exercise its discretion to refuse relief on the basis of futility. This is because, in the absence of an application for reinstatement within the 14 day period provided following notification of the dismissal decision, the Tribunal has no option but to confirm the dismissal decision.
The court book, filed on 20 September 2017, which I received as evidence, confirms both the absence of any application for reinstatement and the error made by the Tribunal. While I accept the Minister’s concession that the error made by the Tribunal goes to jurisdiction, I also accept the Minister’s submission that it would be futile in the circumstances to remit the matter to the Tribunal. In other respects, I agree with the Minister’s submissions concerning the grounds of review advanced.
Ground 1
Particular (a) of this ground complains that the applicant did not know of the likely time frame of the Tribunal hearing. However, as set out above, the applicant was deemed to have received the hearing invitation issued by virtue of ss.379C (and s.379G) of the Migration Act.
Particulars (b) and (c) assert that the Tribunal was obliged to seek further (unspecified) information under s.359 before dismissing the application. However, there is no general duty upon the Tribunal to make inquiries.[22] Particulars (b) and (c) appear to misunderstand the basis of the Tribunal’s decision. The Tribunal dismissed the application pursuant to ss.362B(1A)(b) and (1E), by reason of the applicant’s non-appearance. The applicant failed to file a reinstatement application within the prescribed period of 14 days, resulting in the mandatory confirmation of the dismissal.
[22] Minister for Immigration v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [1] and [25]; BBP15 v Minister for Immigration [2018] FCA 501 (13 April 2018) at [47]
I have dealt with particular (d) above.
For these reasons, none of the particulars advanced in relation to Ground 1 are capable of demonstrating jurisdictional error.
Ground 2
Ground 2 repeats the assertion under particular (d) of Ground 1 that the applicant sent a facsimile to the Tribunal. I have dealt with that assertion.
Accordingly, Ground 2 is unable to succeed.
Ground 3
Ground 3 refers to the typographical error in [2] of the confirmation decision, which refers to “15 May 2107”, rather than 15 May 2017.
However, it is well established that a typographical error that does not affect the outcome of a review is incapable of affecting the jurisdiction of the Tribunal.[23]
[23] S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 at [27]- [35]; BKO16 & Anor v Minister for Immigration & Anor [2018] FCCA 600 (13 March 2018) at [95]
Accordingly, Ground 3 is unable to succeed.
I conclude that while the Tribunal was in error in relation to the timing of its confirmation decision, and the Minister concedes that the error goes to jurisdiction,[24] it would be futile to remit the matter and relief should be refused in the exercise of discretion.
[24] I am dealing with the matter on the basis of that concession, not a finding that the Tribunal’s error goes to jurisdiction on the facts of this case
I will, therefore, order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,400. Mr Gajjala did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 10 May 2018
6
3