Lim v Minister for Immigration and Border Protection
[2018] FCA 1322
•27 August 2018
FEDERAL COURT OF AUSTRALIA
Lim v Minister for Immigration and Border Protection [2018] FCA 1322
Appeal from: Application for leave to appeal: Lim v Minister for Immigration & Anor [2018] FCCA 496 File number(s): NSD 379 of 2018 Judge(s): YATES J Date of judgment: 27 August 2018 Catchwords: MIGRATION – application for leave to appeal – whether ground stated in draft notice of appeal has reasonable prospects of success – application dismissed Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Federal Court of Australia Act 1976 (Cth), s 24
Migration Act 1958 (Cth), ss 360, 362B, 362C, 379A, 379G
Date of hearing: 27 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: The applicant appeared in person, assisted by an interpreter Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore Lawyers Counsel for the Second Respondents: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 379 of 2018 BETWEEN: LINA LIM
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
27 AUGUST 2018
THE COURT ORDERS THAT:
1.The application for leave to appeal dated 14 March 2018 be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
The applicant, Lina Lim, seeks leave to appeal from a judgment of the Federal Circuit Court of Australia (the Circuit Court) given on 1 March 2018, which dismissed the applicant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal) made on 16 May 2017, which confirmed an earlier decision of the Tribunal to dismiss the review application before it.
On 18 August 2011, the applicant arrived in Australia on a student visa. She held subsequent student and bridging visas up until 10 March 2016, when she applied for a Student (Temporary) (Class TU) visa— the visa the subject of the present application.
On 3 June 2016, a delegate of the first respondent, the Minister for Immigration and Border Protection refused to grant the visa on the basis that the applicant was not a genuine temporary entrant. On 21 June 2016, the applicant applied to the Tribunal to review the delegate’s decision (the review application). In her application to the Tribunal, the applicant nominated her registered migration agent’s email address as her address for service: see s 379G of the Migration Act 1958 (Cth) (the Migration Act).
On 11 April 2017, the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the review application: see s 360 of the Migration Act. The invitation, which was in writing, was sent by email to the applicant’s nominated address for service. The scheduled hearing was for 1 May 2017.
On 29 April 2017, the applicant’s agent informed the Tribunal that he had not been able to get in contact with the applicant. Neither the applicant nor her agent attended the hearing on 1 May 2017. On that day, the Tribunal dismissed the review application under s 362B(1A)(b) of the Migration Act, as it was entitled to do (the non-appearance decision). In accordance with s 362C(5) of the Migration Act, the Tribunal informed the applicant of the non-appearance decision. The Tribunal also informed the applicant that she could, within 14 days, apply to reinstate the review application: see s 362B(1B)–(1F) and s 362C(6) of the Migration Act.
The applicant applied to reinstate the review application (the reinstatement application). The Tribunal considered the reasons advanced by the applicant (discussed below), but did not consider it appropriate to accede to the application because the Tribunal did not accept that the applicant had provided a reasonable excuse for not attending the hearing on 1 May 2017. The Tribunal therefore confirmed its decision to dismiss the review application (the confirmation decision). The effect of the confirmation decision was that the decision under review was taken to be confirmed under s 362B(1F) of the Migration Act.
On 9 June 2017, the applicant filed her application for judicial review with the Circuit Court, raising three grounds:
1. The Tribunal have denied me natural justice and procedural fairness by not giving me a hearing.
2. The application for review was lodged in June 2016 and for almost a year I hear nothing from the Tribunal and yet I was only given 19 days’ notice before a scheduled hearing where in the same period I moved address and did not respond until the second letter from the Tribunal asking me to make an application for a reinstatement of the hearing which the Tribunal refused.
3. I feel the Tribunal decision to refuse to give me a hearing is unfair.
The application for judicial review was directed to the Tribunal’s confirmation decision. The primary judge dismissed the application for the following reasons:
(a)First, the Tribunal had given an invitation to the applicant pursuant to s 360 of the Migration Act. The invitation was given by email to the applicant’s migration agent, as nominated by her. The invitation was, therefore, given by one of the prescribed methods (by email) in s 379A(5) of the Migration Act. The Tribunal was required by s 379G(1) of the Migration Act to send the invitation by this means and, by s 379G(2), the invitation was taken to have been given to the applicant.
(b)Secondly, absent an appearance by the applicant on 1 May 2017, pursuant to the invitation that had been given, the Tribunal dismissed the review application pursuant to s 362B(1A)(b) of the Migration Act. The Tribunal did so by a written statement that complied with s 362C of the Migration Act.
(c)Thirdly, when the applicant applied for reinstatement of the review application, she provided a statement and evidence, which the Tribunal considered.
(d)In these circumstances, the Tribunal complied with its notification and other procedural fairness obligations under the Migration Act.
It is convenient at this point to summarise the applicant’s reasons for not attending the hearing on 1 May 2017 and the Tribunal’s reasons for rejecting these as a reasonable excuse for non-attendance.
The applicant said that she had changed address in January 2017 and forgot to notify her agent. She said that she also changed her mobile phone number the previous year to avoid nuisance calls. She provided a utility bill to the Tribunal with her current address, showing her husband’s name.
The Tribunal reasoned that it had given an invitation to the applicant in accordance with the Migration Act. The applicant had provided her agent with an email address, which was the same email address recorded on the delegate’s decision record (that is, the decision under review before the Tribunal). The Tribunal reasoned that the applicant would have access to her email account and that her agent could contact her at that address. (I pause to note that the primary judge’s reasons record (at [22]) that, at the Circuit Court hearing, the applicant informed the primary judge that “she thinks she might have received the hearing invitation on her email, but she is not sure if or when she received it”.) The Tribunal also found that there was no independent evidence that the applicant’s own mobile phone number had changed.
The primary judge went on to consider other possible aspects of the application for judicial review. His Honour’s findings and conclusions can be summarised as follows:
(a)First, if by Grounds 1 and 3 of the application for judicial review the applicant was contending that she was denied procedural fairness because she had not been invited to attend a hearing in relation to the reinstatement application, that contention failed as there was no requirement under the Migration Act for such a hearing.
(b)Secondly, if by Ground 2 of the application for judicial review, the applicant was taking issue with the confirmation decision because she was only given 19 days’ notice of the hearing scheduled for 1 May 2017, that fact did not reveal jurisdictional error.
(c)Thirdly, if by Ground 2 of the application for judicial review, the applicant was contending that the Tribunal’s decision not to reinstate her review application was legally unreasonable, that contention could not succeed, having regard to the terms and scope of the Tribunal’s statutory powers. The primary judge found that the Tribunal’s confirmation decision was within its area of decisional freedom.
Overall, the primary judge concluded that the applicant was unable to demonstrate jurisdictional error by the Tribunal in relation to its confirmation decision.
The applicant’s draft notice of appeal to this Court raises a single ground, particularised as follows:
1.The Court below made a jurisdictional error in dismissing the appeal from the Administrative Appeal Tribunal.
Particulars
(i) The Court below erred in its decision to dismiss the appeal from the Administrative Appeal Tribunal who did not adopt a fair process in making its decision by not giving the applicant a hearing.
The reference in the draft notice of appeal to “jurisdictional error” is inapposite.
The applicant provided written submissions in support of her present application. The applicant informed me that the submissions had been prepared by a lawyer who had been a friend for a long time. The submissions are expressed at a high level of generality and, apart from referring to certain background facts, deal with uncontentious principles of procedural fairness which do not engage with the facts and circumstances of the present case. Confusingly, the submissions also say that the applicant is seeking a review of the Circuit Court decision under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act) while at the same time stating that the applicant seeks to bring an appeal under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The reference to making an application under the AD(JR) Act is misconceived. It is also irrelevant in the context of the present application, which is an application for leave to appeal.
I invited the applicant to identify the particular error(s) she thought the primary judge had made in failing to find that the Tribunal denied her procedural fairness. The applicant said that she had no comment to make.
The proposed appeal, as articulated in the draft notice of appeal, is not viable. The ground sought to be raised has no reasonable prospects of success. The judgment of the Circuit Court, dismissing the applicant’s application for judicial review, does not reveal appealable error. Specifically, the primary judge’s finding that the Tribunal complied with its notification and other procedural fairness obligations under the Migration Act, does not reveal appealable error. The primary judge’s further findings, summarised at [12] above, similarly do not reveal appealable error. In the circumstances, it would be futile to grant the applicant leave to appeal.
Therefore, the application for leave to appeal must be dismissed, with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 31 August 2018
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