Li v Minister for Immigration & Anor
[2017] FCCA 2326
•22 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LI v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2326 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – dismissal of review application for non-attendance – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.360A, 362B, 362C, 368, 379A, 379C, 476, 494C |
| Cases cited: BZAHM v Minister for Immigration [2015] FCA 675 MZXOT v Minister for Immigration (2008) 233 CLR 601; [2008] HCA 28 Prodduturi v Minister for Immigration (2015) 144 ALD 243; [2015] FCAFC 5 |
| Applicant: | CAIZHONG LI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 72 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr L Dennis of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the proceeding, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 72 of 2017
| CAIZHONG LI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant, Mr Li, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 December 2016. The Tribunal confirmed an earlier decision to dismiss Mr Li’s review application on account of his non-attendance. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 15 September 2017.
Factual background
Mr Li is a citizen of China.
On 5 August 2016, Mr Li lodged an application for a Medical Treatment (Visitor) (class UB) visa (medical treatment visa) to enable him to undertake unspecified medical treatment[1], and in support he provided a letter from Dr Yong Xin Shi which stated that he suffered from lower back pain[2].
[1] Court Book (CB) 1-13
[2] CB 12
On 9 August 2016 a delegate of the Minister (delegate) refused to grant Mr Li a medical treatment visa[3]. The delegate found that Mr Li failed to satisfy criterion 3001 in Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations), which he was required to satisfy pursuant to clause 602.213 of Schedule 2 of the Regulations. This was because he did not lodge his medical treatment visa application within 28 days of his last substantive visa ceasing on 15 August 2013.
[3] CB 19-24; esp. CB 22-24
On 23 August 2016 Mr Li applied to the Tribunal for review of the delegate's decision (the Tribunal application)[4]. In that application, Mr Li provided the following correspondence details:
[4] CB 25-26
Address: 20/368 Catherine Street, Lilyfield NSW 2040
Mobile: 0431 383 983
Email: [email protected]
I note that, due to a software incompatibility between the Court's computer system and the security protections of the computer system of the Minister’s solicitors, the Tribunal application has not been correctly reproduced in the court book. Specifically, lower case letters “i” and “l” have not been reproduced in the Court's filed copy, but those letters are correctly reproduced in the Minister’s unfiled copy. Consequently, on 5 July 2017 the Minister filed an affidavit of Jessie Penelope Whistler Street affirmed on 4 July 2017 annexing a copy of the Tribunal application that correctly reproduces that application.
By letter dated 19 October 2016 the Tribunal invited Mr Li to appear before it at a hearing on 5 December 2016 (the hearing invitation letter)[5]. That letter states that it was to be sent by email to [email protected][6]. The Tribunal sent an email to [email protected] with an attachment at 2.29pm on 19 October 2016[7].
[5] CB 36-45
[6] CB 37-38
[7] CB 36
At 2.31 pm on 19 October 2016, the Tribunal received a delivery failure message in respect of the email sent to [email protected] earlier that day[8]. Consequently, on 20 October 2016 the Tribunal sent Mr Li a letter by post to 20/368 Catherine Street, Lilyfield NSW 2040[9]. That letter refers to the undelivered email, and an attempt to contact Mr Li on 0431 383 983 (but states that the number appeared to be disconnected), and states that a copy of the hearing invitation letter is enclosed.
[8] CB 46-49
[9] CB 50
Mr Li did not attend the scheduled hearing on 5 December 2016[10]. Accordingly, on the same day, the Tribunal dismissed the application under s.362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act) (the dismissal decision)[11]. A copy of that decision was enclosed with a letter to Mr Li dated 5 December 2016, to be sent by email to [email protected][12]. The Tribunal sent an email to [email protected] with two attachments on 5 December 2016 at 4.00pm[13].
[10] CB 51
[11] CB 50-56; especially CB 56
[12] CB 53
[13] At CB 50
At 4.02pm on 5 December 2016, the Tribunal received a delivery failure message in respect of the email sent to [email protected] earlier that day[14] .
[14] CB 57-60
On 12 December 2016 Mr Li sent the Tribunal an email from the email address [email protected] stating that he was “absent” from the hearing “due to my poor health condition”[15]. He attached a “medical report”, which was in fact a doctor’s referral for a pathology test[16]. That email from Mr Li contained a forwarded version of the Tribunal’s email of 5 December 2016 sent to [email protected][17].
[15] CB 61
[16] CB 62
[17] CB 61
Tribunal decision
By decision dated 21 December 2016, the Tribunal confirmed the dismissal decision under s.362B(1C)(b) (the confirmation decision)[18].
[18] CB 63-68; especially CB 65-66
The Tribunal took Mr Li’s email of 12 December 2016 to be an application for reinstatement[19]. The Tribunal found that it was not appropriate to reinstate the application because the material provided by Mr Li was a “doctor’s referral for a blood test dated 10 December 2016”, which was not medical evidence in relation to the condition of Mr Li’s health on 5 December 2016 nor evidence as to why this prevented him from attending the hearing[20].
[19] CB 66 at [4]
[20] CB 66 at [5]
The present proceedings
These proceedings began with a show cause application filed on 10 January 2017. Mr Li continues to rely upon that application. The three grounds are:
1.The Tribunal made jurisdictional error when making its decision to dismiss my application.
2.The Tribunal ignored the fact that I have done the reinstatement of my application.
3.The Immigration Department refused my medical treatment visa on the ground of clause 602.213, however, I do provide evidence showing I had met the criteria of 602 visa.
In addition to the court book filed on 21 February 2017, I have before me, as evidence, the affidavit of Ms Street made on 4 July 2017.
Annexed to that affidavit is a complete copy of Mr Li’s review application to the Tribunal lodged online. Under the heading “Correspondence Details” is the email address of Mr Li nominated for correspondence.
I made procedural orders on 5 May 2017 to prepare the case for hearing today. I provided Mr Li with the opportunity to file and serve an amended application and additional evidence. He has not taken up that opportunity. I also required submissions to be filed by the parties in advance of today’s hearing. Only the Minister complied with that order.
I invited oral submissions from Mr Li this afternoon. He claimed that he could not attend the Tribunal hearing to which he had been invited because the hearing was at night.
I took Mr Li to the hearing invitation reproduced at page 37 of the court book. He said that he had never seen that before and that the hearing invitation he received was different. He was, however, unable to produce any document. Mr Li asserts that he suffers from lower back pain due to slipped disks. He said he was very sick at the time of the Tribunal hearing. That may well be so, but his difficulty is that he did not provide any material medical details to the Tribunal when seeking re-instatement of his application.
As I explained to Mr Li, on the very limited information he provided, the Tribunal was entitled to conclude that the earlier dismissal decision should be confirmed. I also asked Mr Li about the email address he used for correspondence and the transmission failure reports returned to the Department from that email address. He was not able to provide any submissions in relation to that issue. Those transmission failure reports are curious given that Mr Li twice responded to emails sent to the address, notwithstanding the transmission failure reports. I find, consistently with the Minister’s submissions, that there is no jurisdictional error arising from the Tribunal’s use of that email address for communications.
I otherwise agree with the Minister’s submissions in relation to the grounds of review in the application.
Mr Li’s first ground is a bare assertion of jurisdictional error by the Tribunal, and does not raise an arguable case for the relied claimed in its current form.
Mr Li’s second ground asserts that the Tribunal ignored Mr Li’s reinstatement application. That assertion must fail at a factual level. The Tribunal clearly took Mr Li’s email of 12 December 2016 to be a reinstatement application, and its attachment to be evidence in support of that application, but was not satisfied on the material provided that it was appropriate to reinstate the matter. This ground also does not raise an arguable case for the relied claimed.
Mr Li’s final ground takes issue with the delegate’s decision. However, this Court does not have jurisdiction to review any alleged error in the delegate's decision[21], as the delegate’s decision was a “primary decision” as defined in s.476(4)[22]. In any event, the substance of the third ground is an expression of Mr Li’s disagreement with the delegate’s findings, and seeks impermissibly to challenge the merits of that decision.
[21] Subsection 476(2) of the Migration Act
[22] MZXOT v Minister for Immigration (2008) 233 CLR 601; [2008] HCA 28; Prodduturi v Minister for Immigration (2015) 144 ALD 243; [2015] FCAFC 5 at [34]–[36]
Other issues
The Minister submits and I accept that the only issues that arise on judicial review are:
a)whether Mr Li was correctly notified of the hearing and the dismissal decision; and
b)whether the confirmation decision was legally reasonable.
Was Mr Li correctly notified of the hearing and the dismissal decision?
I accept that the hearing invitation sent to Mr Li complied with the requirements of s.360A of the Migration Act. Relevantly, the hearing invitation:
a)gave Mr Li notice of the day, time and place on which he was scheduled to appear[23];
b)was sent by a method specified in s.379A of the Migration Act—by email to the last email address provided to the Tribunal by Mr Li in connection with the review[24] ;
c)gave Mr Li 47 days’ notice of the hearing, which was more notice than the 14 days’ notice prescribed by clause 4.21 of the Regulations[25]; and
d)enclosed an “Information about hearings—MR Division” brochure, which contained a statement to the effect of s.362B[26].
[23] Subsection 360A(1)
[24] Subsection 360A(2), read with s.379A(5)
[25] Subsection 360A(4)
[26] Subsection 360A(5)
Pursuant to s.379C(5), as the hearing invitation letter was given by the method in s.379A(5), Mr Li was taken to have received the document at the end of the day on which the document was transmitted. Although the Tribunal received a delivery notification failure with respect to the hearing invitation letter, by operation of s.379C, Mr Li is deemed to have received the hearing invitation letter on the day that it was transmitted irrespective of whether or not he actually received it[27].
[27] See, eg, SZOBI v Minister for Immigration (No.2) (2010) 119 ALD 233; [2010] FCAFC 151, with respect to the relevantly identical s.494C
In any event, I accept that:
a)Mr Li should be taken to have received that email, despite the delivery failure message, in light of his reply email sent on 12 December 2016 which indicated that he did, in fact, receive emails sent to [email protected];
b)independently of the email, Mr Li should be taken to have received the hearing invitation letter because the Tribunal sent a further copy of the hearing invitation letter by post to Mr Li’s postal address on 20 October 2016; and
c)Mr Li has never complained that he did not receive a copy of the hearing invitation letter.
Accordingly, I accept that the Tribunal correctly invited Mr Li to a hearing before it for the purposes of s.360 of the Migration Act. (I further note that the Tribunal was not obliged to take further steps to invite Mr Li to the hearing[28].)
[28] See Minister for Immigration v SZFHC [2006] FCAFC 73 at [39]; BZAHM v Minister for Immigration [2015] FCA 675
I also accept that Mr Li was correctly notified of the dismissal decision, as the letter notifying Mr Li of the dismissal decision (and its accompanying documents) complied with the requirements of s.362C of the Migration Act. That is:
a)the accompanying written statement set out the decision, the reasons for the decision, and the day and time the statement was made[29];
b)the Tribunal gave Mr Li a copy of the written statement within 14 days of the day on which the decision was made[30];
c)the written statement was sent by a method specified in s.379A of the Migration Act—by email to the last email address provided to the Tribunal by Mr Li in connection with the review[31]; and
d)the written statement was accompanied by an “Information about dismissal of applications—MR Division” brochure which described the effect of s.362B(1B) to (1F)[32].
[29] Subsections 362C(2)(a), (b) and (d)
[30] Subsection 362C(5)(a)
[31] Subsection 362C(5)(b)
[32] Subsection 362C(6)
Again, although the Tribunal received a delivery notification failure with respect to the dismissal decision, I accept that, pursuant to s.379C(5), as the dismissal decision was given by the method in s.379A(5), Mr Li was taken to have received the document at the end of the day on which the document is transmitted (irrespective of whether or not he actually received it).
Furthermore, Mr Li has demonstrated that he received that email and the dismissal decision given that he directly replied to that email on 12 December 2016 and sought reinstatement of the application[33].
[33] Cf. s.379C(7) of the Migration Act
Accordingly, I find that the Tribunal correctly notified Mr Li of the dismissal decision.
Was the confirmation decision made reasonably?
Subsection 362B(1B) of the Migration Act states that, if the Tribunal dismisses an application for non appearance, the applicant may, within 14 days after receiving notice of the decision under s.362C, apply to the Tribunal for reinstatement of the application. Under s.362B(1C), if an applicant applies for reinstatement, the Tribunal must:
a)if it considers it appropriate to do so—reinstate the application, and give appropriate directions, by written statement under s.362C; or
b)confirm the decision to dismiss the application, by written statement under s.368.
Section 362B does not provide any criteria that must be taken into account by the Tribunal when deciding whether to reinstate the application or to confirm the decision to dismiss the application. However, the Tribunal's discretion whether to reinstate the application or to dismiss the application is subject to the requirement that the discretion be exercised reasonably, in the sense contemplated in Minister for Immigration v Li[34] (Li).
[34] (2013) 249 CLR 332; [2013] HCA 18
The question of whether a Tribunal exercised its discretion reasonably is fact specific[35].
[35] cf. Minister for Immigration v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [63]; Minister for Immigration v SZVFW [2017] FCAFC 33 at [38]; [44]
The facts of this particular matter demonstrate that the Tribunal's refusal to reinstate the application meant that the decision of the Tribunal fell within the range of possible, acceptable outcomes that are defensible in respect of the facts and law[36]. This is for the following reasons:
a)Mr Li was correctly invited to a hearing before the Tribunal. In sending the hearing invitation, the Tribunal used the only addresses (an email and a postal address) that it had for Mr Li. There was no other known address the Tribunal could use to send a hearing invitation to;
b)the Tribunal attempted to call Mr Li’s mobile number, prior to the hearing, but found that it was disconnected. It was not unreasonable for the Tribunal not to continue to attempt to contact Mr Li on a number that had been disconnected; and
c)Mr Li’s medical evidence was plainly insufficient to support his claim that he was too ill to attend the hearing on 5 December 2016. It was simply a referral for a pathology test that did not demonstrate what health condition he was suffering from on the day of the hearing; it was dated 10 December 2016 (that is, after the hearing); and it did not state that he was incapacitated from undertaking any activities (including attending a Tribunal hearing).
[36] cf. Li at [105]
In those circumstances, the Tribunal’s conclusion that it was not appropriate to reinstate the application was open to it on the material before it, and its reasons provide an evident and intelligible justification for that decision[37].
[37] Li at [76]
Conclusion
I conclude that Mr Li is unable to demonstrate an arguable case of judicial error by the Tribunal. I will accordingly dismiss the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale at the time Mr Li’s application was filed. Mr Li did not wish to be heard on costs.
I will order that Mr Li is to pay the first respondent’s costs and disbursements of and incidental to the proceeding, fixed in the sum of $3,606.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 September 2017
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