Liu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 501
Federal Circuit and Family Court of Australia
(DIVISION 2)
Liu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 501
File number(s): SYG 3513 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 28 June 2022 Catchwords: MIGRATION – reinstatement application – unfortunate procedural history – whether the applicant, by omitting the previously provided email address on a 2019 Notice of Address for Service was withdrawing her consent to accept service by email – each of the grounds raised lack a sufficient prospect of success – not in the interests of justice to reinstate the application for determination at a final hearing – application in a proceeding is dismissed Legislation: Migration Act 1958 (Cth) s 476
Statutory Declarations Act 1959 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05
Federal Circuit Court Rules 2001 (Cth) rr 2.04(1A), 6.01
Migration Regulations 1994 (Cth), regs 1.21, 1.24, 1.25
Statutory Declarations Regulations 2018 (Cth)
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10
CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279
Overy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 749
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of hearing: 24 May 2022 Place of hearing: Sydney The Applicant: In Person Solicitor for the Respondents: Ms A Wong of Mills Oakley ORDERS
SYG 3513 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HONGXIU LIU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
28 June 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 29 March 2022 is dismissed.
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 GIVEN:
By an Application in a Proceeding filed on 29 March 2022 the applicant seeks reinstatement of an application for judicial review made on 16 November 2017 (reinstatement application). The proceedings were initially dismissed by me on 1 March 2022 when the applicant failed to attend a final hearing.
Background
The background to this matter is somewhat convoluted and would be capable of being described as a “comedy of errors”, except to the extent that it is not at all funny, least of all for the applicant.
The applicant commenced her judicial review proceedings on 16 November 2017 and at all times throughout them, including upon this reinstatement application, she has been unrepresented. At the time the applicant commenced the proceedings, she provided a postal address in Waitara, New South Wales, together with a particular gmail address (first gmail address).
On 14 December 2017, a Registrar of this Court made orders by consent which provided inter alia for the applicant to file and serve any amended application by 8 March 2018, which did not occur. Order 7 made on 14 December 2017 provided a return date, being a listing for callover on Monday, 12 August 2019 at 9.30 am before Judge Barnes at the Court located at 80 William Street, Sydney.
On 12 August 2019, the applicant filed a Notice of Address for Service (2019 Notice) in a form which was approved by the Chief Judge at the same time pursuant to r 2.04(1A) of the Federal Circuit Court Rules 2001 (Cth) (Former Rules), an example of which forms Appendix A to these reasons for judgment.
Of significance in relation to that form is that Part 3 provides a space for the inclusion of an address for service, which is a street address. Next to the space for provision of a fax number, there is an asterisk (*). The same asterisk is included next to the space for provision of an email. The asterisk corresponds to a notation in bold italics which appears immediately above the signature block and which says the following:
* Please do not include a fax or email address unless you are willing to receive documents from the Court and other parties in that way.
The applicant completed the 2019 Notice in the following way:
(a)providing an entirely new postal address in Deer Park, Victoria (Deer Park address);
(b)providing a mobile telephone number which was the same as the telephone number which she had provided by the originating application; and
(c)by ticking the “yes” box which accompanied the question in Part 4, which asked, “Is this the address for service of Notices for all proceedings with the above file number?”
Significantly, the applicant did not provide an email address when completing the 2019 Notice. Rather, that section of Part 3 of the form was left blank.
A question therefore arises as to whether the applicant, by omitting the previously provided email address, was withdrawing her consent to accept service by email. This is relevant to the applicant’s explanation for failing to attend the hearing on 1 March 2022, as well as to some other somewhat regrettable occurrences throughout the proceeding which will be addressed below.
When asked about her explanation for non-attendance at the hearing before me on 1 March 2022, the applicant made submissions which went beyond the content of the explanation in the reinstatement application and the Affidavit filed in support. While not constituting sworn evidence, I am prepared to accept the salient parts of the applicant’s version of events as outlined from her oral submissions because they correspond with what is objectively discernible from the Court file and other correspondence sent by the first respondent’s solicitors. Where the applicant has given explanations which I do not find plausible, I will so indicate. Accordingly, the following appears to have transpired.
When the applicant commenced the proceedings, the originating application was filed in the Sydney Registry of the Court and the address she provided in Waitara belonged to her friend, because she did not have a permanent address at the time. She stated that this friend would give her any letters that arrived for her. It seems the applicant’s friend may have been a less than diligent mailbox.
The applicant claims, although there is nothing before me to corroborate it, that she was assisted in the preparation of the originating application by a migration agent. While there is nothing before me which demonstrates that the applicant was assisted by any person and if so, by whom, I am prepared to accept she may have had some assistance.
The applicant claims that at the time the originating application was prepared, she did not have an email address. The applicant conceded that she signed the application form, and she also signed the appendix to it, which contains her grounds, but she says she did not know what those grounds meant. The applicant told the Court that the person who assisted her in preparing her application created the first gmail address specifically for use in the proceedings. There is a degree of plausibility to that explanation given that the first gmail address has a username which includes “2017”, being the year in which the application was filed. The applicant says she did not have access to that email address. It is difficult to know if that is true or not, given what has transpired in the matter. Overall, I am prepared to accept the applicant may not have had access to it herself but some events suggest that perhaps whoever did have that access provided her with emails sent to the first gmail address on some (but not all) occasions.
The applicant asserted several times at hearing that this migration agent has since been “thrown in jail”. Similarly I have nothing before me to verify this nor to indicate why that particular morsel would be relevant to the instant matter.
At some time after the commencement of the proceedings but before August 2019, the applicant moved to the Deer Park address. Despite this, the applicant did not change her address at the time of her move.
On 2 July 2019, the Associate to Judge Barnes sent a letter to the parties. The letter was sent to the applicant at both the first gmail address (as an attachment to an email) and to the Waitara address. The letter stated as follows:
Please be advised that this matter has been administratively adjourned to a date to be fixed and will be notified to you.
Please ensure that if you change your address for service you file an updated Notice of Address with the court.
On 12 August 2019, the applicant attended the Court at 80 William Street, Sydney for the callover of which she was aware from the orders made in December 2017, but the adjournment of which she was unaware. This obliviousness was unsurprising given that the Waitara address was not the applicant’s and that, on her version of events, she did not have access to the first gmail address. The reason I am prepared to accept that the applicant genuinely did not know about the adjournment of the callover is because she flew, at her own expense, from Melbourne to Sydney to attend the vacated callover which could have been prevented if the applicant was accessing the account for the first gmail address, or, if whoever was, had passed along the Court’s correspondence on that occasion.
Upon arrival at the Court on 12 August 2019, the applicant was informed that the callover had been adjourned and it seems that whomever she spoke to discerned that the reason she had attended unnecessarily was because she had changed her postal address and it was in these circumstances that applicant says was redirected to attend the Court’s Registry in Queens Square.
The applicant says that the handwriting on the 2019 Notice is her own and she completed it herself in the Court Registry at Queens Square, Sydney.
The applicant says, and on balance I accept, that she did not include an email address in the 2019 Notice because at that time she did not have an email address of her own. While it is true that the applicant could have referenced her originating application to copy the first gmail address across, her having omitted it while including personal details which were instantly known to her and able to be recalled (such as her address and mobile telephone number) is consistent with her explanation to not be the creator/user of the first gmail address.
Despite the applicant having provided the Deer Park address, at no time did either she, or the solicitors for the Minister, seek to have the proceedings transferred to the Melbourne Registry.
The applicant says she remained living at the Deer Park, Victoria address until November 2021 when she moved to an address in Sunshine, Victoria (Sunshine address). When asked why she did not change her address with the Court, the applicant said that because of COVID-19 lockdown restrictions, she was unable to do so, but that in January or early February of this year, which she recalled because it was “around Chinese New Year”, she had intended to change her address with the Court but again was in lockdown.
The applicant concedes that she did not attempt to contact the Court to discover how she could lodge documents during the COVID-19 pandemic. The applicant said that she repeatedly asked her landlord from the Deer Park property if any letters had arrived but none was forthcoming.
When asked how the applicant found out that her proceedings had been dismissed, the applicant said she had wanted to know what was happening in the proceedings so she contacted a migration agent, who had worked for her in 2015. He checked the Court system for her and said her case had been heard and dismissed and that she had 28 days in which to seek reinstatement.
The applicant then pursued the reinstatement application. When asked about the 10 days between the date that she had deposed her Affidavit in support of the reinstatement application and the filing of it, the applicant said this was because she did not know how to file documents with the Court herself so she had to ask the migration agent to assist her with the same. This explanation again has an air of plausibility about it given that the documents were filed on the 28th day after the dismissal. Even though the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Court Rules) do not provide a time in which a reinstatement application is to be made, the applicant having filed on what she mistakenly believed to be the 28th day is explicable.
By the reinstatement application the applicant provided a new gmail address as being an email address for service (second gmail address). No complete postal address was provided by the reinstatement application (although a postcode was included) but a postal address was included on the footer of the Affidavit of the applicant which was filed in support of the reinstatement application. At the conclusion of the hearing of the reinstatement application, I asked the applicant to remain after I adjourned, to participate in the preparation of a new Notice of Address for Service which regularised a postal address and the second gmail address for the purposes of the Court’s record, and which my Associate filed for the applicant in Court.
Address for service
At the time that the applicant commenced the proceedings and at the time that she filed the 2019 Notice, the relevant Court rules applicable to her matter were the Former Rules. Rule 6.01 of the Former Rules provided:
Address for service
(1) A party to a proceeding must give an address for service.
(2) A party may give an address for service:
(a) by filing a relevant document that includes an address for service; or
(b) by filing a notice of address for service in accordance with the approved form.
(3) An address for service:
(a) must be an address in Australia; and
(b) must include a telephone number at which the party may be contacted during normal business hours; and
(c) may include a fax number or an email address for the party.
(4) If the party is represented by a lawyer who has general authority to act for the party, the address for service for the party must be the address of the lawyer.
(5) If the party is represented by a lawyer and the notice for service provides the lawyer's email address, the party agrees for the party's lawyer to receive documents at the lawyer's email address.
(6) If the party is not represented by a lawyer but provides an email address, the party agrees to receive documents at the email address.
Note: The parties may agree on how service is to be carried out. For example, the parties may agree that service be at a fax number.
As will be observed, r 6.01(3)(c) was in permissive terms. By contrast, the new Court Rules have altered this, no doubt in keeping with the change in times, to make mandatory the provision of an email address: see r 6.01(3)(c) of the new Court Rules. However, while the new Court Rules did apply from September 2021 onwards, they did not apply to the applicant at the time she commenced the proceedings, nor at the time that she filed the 2019 Notice.
In my view, by omitting the first gmail address, the applicant was taking heed of the Court's caveat contained on the form which is appended to this judgment in relation to the provision of a fax and email address and electing by that omission to no longer accept service by email. Further support for this is garnered from the fact that the applicant re-included her mobile telephone number in the 2019 Notice, notwithstanding that it had not changed. For the Minister, it is submitted that:
While the applicant moved from the Waitara address in or around August 2019, the applicant’s email address for service remained unchanged: [first gmail address].
I reject that characterisation. It is open to infer that had the applicant's email address remained unchanged but that she was content for it to remain on the record as a form of service, she would have included it again, just as she did with her mobile number.
In this regard, and as noted above, while what was said by the applicant from the Bar table was not sworn evidence, on balance I am prepared to accept that the applicant did not have an email address of her own until a later time. The reason she omitted the email address from the 2019 Notice was because she was unaware of the email address that had been established for her by the migration agent and included in the originating application or was otherwise unable to access it. The applicant says, and I accept, that she did not include an email address there because she did not have an email address at the time. Further, there is nothing that suggests to me that the operation of the Court Rules from 1 September 2021 would entitle the Court or any other party to reach back to the originating application to readopt an address which, at the very least, had not been reiterated at the last juncture at which contact details would be provided.
At the time that the matter was dismissed for want of appearance on 1 March 2022, the omission of an email address was not particularly highlighted and I proceeded on the basis that the email address had been unchanged from the originating application to the extent that I cannot see that the email address was removed from the Court file when, based on the conclusion above, it ought to have been. Neither were the first respondent’s solicitors nor the Court aware that the applicant had changed her postal address from the Deer Park address to the Sunshine address.
I am of the view that, by the 2019 Notice, the applicant withdrew the first gmail address as being a method by which she agreed to accept service from the first respondent and also as a form of correspondence from the Court.
Accordingly, and in summary, the following addresses were valid as forms of service on the applicant under the Court Rules:
(a)16 November 2017 to 12 August 2019: first gmail address and Waitara address;
(b)12 August 2019 to 29 March 2022: Deer Park address only;
(c)29 March 2022 to 24 May 2022: second gmail address only; and
(d)24 May 2022: second gmail address and Sunshine address.
It follows that if during any of those periods the solicitors for the Minister (or the Court) was corresponding with the applicant at an address which does correspond with the relevant valid address for service, and the applicant did not receive it, then that is a matter for which she is responsible because the onus was on her to ensure that her address for service remained current at all times. If, however, correspondence was sent to an address which does not correspond with the above time periods, then there may be force to the applicant’s explanation that she did not receive the correspondence but, more crucially, she cannot be deemed to have constructively received it.
Reinstatement principles
Pursuant to the Court Rules, the power to set aside the orders made on 1 March 2022 arises from r 17.05(2)(a) which relevantly provides that:
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; …
The power to reinstate is a discretionary power which requires consideration of whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50].
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (which was cited with approval by the Full Federal Court in FBS18), Ryan J considered the general principles relating reinstatement and found at [7] that the relevant factors are:
(a)whether there is a reasonable excuse for the party’s absence;
(b)the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and
(c)whether the substantive application has a reasonable prospect of success if the proceeding is reinstated, with the grounds to be assessed at an impressionistic level: see MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475.
As I previously observed in AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10, the aforementioned matters referred to in the preceding paragraph are not a definitive list, but are consistently considered in the exercise of the Court’s broad discretion to reinstate (see CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J), noting the caution expressed by the Federal Court in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32] where McKerracher J said:
… whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05.
Each the three considerations outlined at [38] above arise for consideration in this matter.
Explanation for non-attendance
The applicant’s explanation for her non-appearance on 1 March 2022 is contained in [3] to [4] her Affidavit made 18 March 2022 (errors in original):
3. I didn’t receive any letters for my hearing of the final decision given by the judge.
4. I attended the previous hearings and left my address for my correspondence.
As noted above in setting out the background to this matter, I explored the applicant’s explanation with her at hearing, some of which has already been set out.
On 22 February 2018, the Minister’s then solicitors served a Court Book which was filed in these proceedings in hard copy on the applicant at the Waitara address: see the affidavit of Ada Wong made on 3 May 2022 (Wong Affidavit) at [3] and annexure “AOW-1” thereto. By reference to [34(a)] above, this was a valid method of service even if the applicant was not living there. In any event the applicant conceded that she had received the Court Book.
On 22 December 2021 this matter was brought into my docket and listed for hearing with consequential orders for the filing of written submissions. On 10 January 2022 the parties were sent a listing notice by the Registry which was sent to:
(a)the applicant at the Deer Park address as well as to first gmail address. By reference to [34(b)] only the Deer Park address could be taken as a formal way of notifying the applicant of the listing, however to the extent that it was such, the applicant was on notice of the hearing fixture; and
(b)the solicitor on the record for the first respondent at the email address provided in the Notice of Address for Service which was filed with the Court on 20 February 2020.
It was at this juncture that the absurdity of error really compounded itself. In the period between 20 February 2020 and 10 January 2022, the solicitor for the first respondent left the firm who represents the Minister in this matter, but no new Notice of Address for Service was filed to notify a replacement. For whatever reason, but in keeping with the string of hapless address issues which have been accumulating in this matter, the email from the Court Registry sending the listing notice did not redirect to someone else, and, as a result the Minister’s solicitors were not aware of the hearing fixture on 1 March 2022, and therefore had not filed submissions in accordance with the Court’s orders.
However, once contacted the day before the hearing, this was rectified very quickly. The solicitors for the first respondent were apologetic and prompt at remedying the fault. As I noted in the hearing of the matter on 1 March 2022, such oversights do occur from time to time with a high-volume case load, and the speed with which comprehensive and helpful submissions were filed was something for which the Minister’s solicitors are to be commended.
On 28 February 2022 the parties were sent the Microsoft Teams link from the Court. Unfortunately, for obvious reasons the link was sent to the parties by email which, in the case of the applicant, meant it was sent to the first gmail address. The solicitors for the first respondent also served their written submissions on the applicant on the morning of the hearing for the reasons outlined above, and these too were served using only the first gmail address: see Wong Affidavit at [4] and annexure “AOW-2” thereto. By reference to [34(b)] above, neither of these transmissions were sent to a valid address for service.
Following the dismissal of the matter for non-appearance, the solicitors for the first respondent served a copy of the sealed orders made that day on the applicant under cover of letter which was sent to the applicant by email to the first gmail address: see [5] of the Wong Affidavit and annexure “AOW-3” thereto. By reference to [34(b)] only the Deer Park address is taken as being a valid method of service.
By the first respondent’s written submissions which were filed before the first respondent and the Court had the benefit of additional submissions from the applicant as to the background to this matter, it was submitted that the applicant’s explanation for her failure appears to weigh heavily against reinstatement. The first respondent submitted in writing that the applicant must have had access to the first gmail address so as to receive notification of the listing because she most certainly had access to them to have subsequently received the sealed orders so as to know that her matter had been dismissed, given the relatively timely manner in which she sought reinstatement.
With the benefit of what the applicant said from the Bar table at hearing, the solicitor for the Minister agreed with the Court that it was possible to give the applicant the benefit of the doubt that she did not receive the hearing invitation or the link, but submitted that it was “awfully convenient” that the applicant just happened to get a migration agent to check on the status of her matter at such a critical juncture. The first respondent’s solicitor submitted that there was no proper evidence filed of any contact with a migration agent.
On balance, having regard to the explanations of the applicant in relation to her non-attendance, I am prepared to accept, as I have noted before, that she did not have an email address up until the time that she obtained the second gmail address. I agree that it is more plausible that the applicant received the sealed orders from someone who did have access to the first gmail address, rather than by spontaneously having someone check the Commonwealth Courts Portal at such an auspicious moment. Any service by the first respondent and correspondence from the Court Registry sent by post to the Deer Park address at that time was valid. It was, of course, the applicant’s responsibility to update that address to any subsequent postal address to which she moved, and she concedes she did not.
However, the difficulty in this matter, both for the first respondent and for the Court, is that the question of whether or not documents were, in fact, sent to the last given addresses or valid addresses for service which were provided to the Court is not the ultimate question. The real sticking point is that the Court’s email to the applicant with the Microsoft Teams link cannot be taken as having been properly sent or received based on my earlier finding regarding the applicant having removed the first gmail address as a method of service by the 2019 Notice.
In this regard, because the hearing was taking place by Microsoft Teams, and because the Court did not have a valid email address for the applicant, there was no mechanism by which she was properly sent the hearing invitation such that she could have clicked on the link and joined the hearing.
While the applicant was on (constructive) notice of the hearing event because the listing notice was sent to the Deer Park address, by failing to update her address to the Sunshine address at the time she moved, the applicant assumed the risk that her matter may be listed and that she would not be notified. I am of the view that the applicant may have known about the hearing on 1 March 2022 but even if she did, I am prepared to give the applicant the benefit of the doubt that she was not in receipt of the Microsoft Teams link (or the Minister’s written submissions) because they were sent to the first gmail address. In this sense even if the applicant had been willing and desirous of attending, she was not given a method by which to do so. Accordingly, I am prepared to accept her explanation for not having attended hearing on 1 March 2022. Contrary to the submissions of the Minister, this weighs in favour of reinstatement.
Delay
In terms of the period between the dismissal and the application for reinstatement, this was 28 days, which is not particularly long. In any event, having accepted her explanation for non-attendance and by reference to the relatively brief delay, I will weigh the question of delay neutrally.
Prejudice
In relation to prejudice, the Minister did not appear from the written submissions to claim to be prejudiced if the matter were to be reinstated and this was confirmed at hearing. Having regard to the principles in Commonwealth of Australia & Anor; Ex Parte Marks (2000) 177 ALR 491 I will weigh this consideration neutrally as well.
Merit
That leaves an assessment of the relative merit of the proposed grounds of review, which as noted earlier, is to be assessed at a relatively impressionistic level.
By her originating application, the applicant sought judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth). Under the heading “Grounds of Application”, the applicant says “Please see the attachment”. The applicant attached to the application a separate page with four paragraphs written in all capital letters (errors in original):
1.I have carefully read the AAT’s refusal letter. At the hearing of 27 April 2017, I explained many times that I had suffered from family violence from the sponsor. Due to verbal explanation, but AAU does not disagree. AAT’s work is very superficial, they even request me to provide new evidence. Therefore, I provided carefully prepared evidence on 10 May 2017 according to the request of the officer. However, AAT officer did not attach importance to my evidence at all, still thought I had not prepared enough materials. Although it seems that AAT is humane, in fact, they only did some superficial effort. AAT is extremely irresponsible to my case.
2.I previously provided AAT with a hospital certificate that I suffered from family violence and a letter. It is clearly said that my physical condition and mental state as a result of family violence. However, AAT officials thought I did not provide appropriate evidence and refused my application. This is really ridiculous. What is the appropriate evidence? This is just AAT officer’s own personal opinion, but they decided my case depended on their own opinion. This is not fair.
3.AAT also said in the refusal letter that I did not provide a statutory declaration as required. In my opinion, it is just a form. I did not provide the format as they requested, does it mean that my statement is not true? Is it woo expedient? Is AAT too careless? What is the working attitude? We are certainly not satisfied with it.
4.In the end, AAT’s letter concluded that I did not meet the criteria, but they did not give me specific reasons. Is this the real refusal letter? Or is simply a mere sham? I hope the Court could give me a fair opportunity to appeal.
What can be firstly observed about all four grounds of review is that they clearly express the applicant’s disagreement with the findings and overall outcome of the Tribunal’s review. As I explained to the applicant at the outset of the hearing and several times throughout, her dissatisfaction with the outcome would not be a sufficient basis to set the decision aside. The merits or otherwise of the applicant’s situation do not form part of this Court’s jurisdiction, even if the matter were at a final hearing. Despite indicating at the outset of the hearing that she understood this, many of the applicant’s submissions to me during the course of the hearing in respect of the merits of the grounds directed themselves to whether or not she was in a genuine spousal relationship and to the question of family violence.
Ground 1
This ground asserts that the Tribunal decision is “very superficial”. The applicant states that she carefully prepared evidence on 10 May 2017 as requested by the Tribunal member, but that the Tribunal member was still not satisfied she had prepared enough materials. The applicant says that the Tribunal did not attach enough importance to her evidence at all. When asked to comment on the ground at the hearing, the applicant made submissions that went entirely to the merits of the grounds.
The difficulty for the applicant in this matter, which confronts all of the grounds that she would wish to raise if the matter was reinstated, is that the finding of the Tribunal that she had failed to provide appropriate evidence in order to make a valid claim to have suffered family violence was not arbitrary, capricious or even discretionary on the Tribunal’s part. Division 1.5 of the Migration Regulations 1994 (Cth) (Regulations) sets out special provisions relating to family violence. Regulation 1.25 is as follows:
Statutory declaration by alleged victim etc
(1) A statutory declaration under this regulation must be made by the spouse or de facto partner of the alleged perpetrator.
(2) A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that he or she is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) set out the allegation; and
(b) name the person alleged to have committed the relevant family violence; and
(c) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.
(3) A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that another person is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) name that other person; and
(b) set out the allegation; and
(c) identify the relationship of the maker of the statutory declaration to that other person; and
(d) name the person alleged to have committed the relevant family violence; and
(e) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the alleged victim and the person whom the conduct was towards; and
(iii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards; and
(f) set out the evidence on which the allegation is based.
In order for the Tribunal to determine whether a non-judicially determined claim of family violence is made out, the applicant was required to present evidence in accordance with reg 1.24: see reg 1.23(9)(c). Regulation 1.24 contains a requirement for, among other things, a statutory declaration by or on behalf of an alleged victim under reg 1.25.
The hearing information record (CB 315-318) indicates that the Tribunal hearing lasted approximately two hours and 10 minutes. The applicant was represented by her solicitor and was assisted by an interpreter in the Mandarin language. At the conclusion of the hearing, the applicant was given further time to provide material until 11 May 2017 (CB 317). Given the very narrow scope of issues for determination by the Tribunal, that hearing duration is substantial.
While I have no transcript before me on the reinstatement application by which I could assess precisely what the Tribunal discussed with the applicant and her representative in terms of any further material to be provided, the Tribunal says it advised the applicant that in order to further her claim, she was required to provide necessary evidence. The applicant was legally represented, and the representative did make a further submission within time. However, notwithstanding this, it is true that the applicant had failed to provide a statutory declaration as required by reg 1.25 of the Regulations. Accordingly, if by this ground, the applicant was dissatisfied that the report she had provided by a psychologist and the statutory declaration she had provided from a social worker did not suffice, and this is what is meant by her challenge to the weight given to the evidence, then again, while understandable from a lay perspective, it would not give rise to an arguable ground even at an impressionistic level. The social worker’s statutory declaration would not have been sufficient, because it was required to be a statutory declaration from the applicant, being the alleged victim.
If the applicant takes issue with the applicant’s responses to the “dob-in” information the subject of the non-disclosure certificate which was discussed with her at hearing, then this is somewhat misconceived because the Tribunal did not place adverse weight on that information.
Overall, I am not persuaded that ground 1 has a reasonable prospect of success, even applying the generally low bar of assessment an impressionistic level, such that it would weigh in favour of reinstatement to be considered at a final hearing.
Ground 2
By ground 2, the applicant refers to having provided a hospital certificate which stated that she suffered from family violence. The applicant referred specifically to the Tribunal’s finding at [5] that despite being given the opportunity to provide appropriate evidence to make a valid claim, she did not do so. The applicant asks rhetorically in the ground, “What is the appropriate evidence?”
When given the opportunity to comment on this at hearing, again the applicant simply reiterated the genuineness of her spousal relationship. As I have just set out, what was required was a statutory declaration of the applicant, and it was not furnished to the Tribunal. The applicant states that the finding is “just the Tribunal officer’s own personal opinion, and that is not fair.” While fully appreciating that the applicant is aggrieved by the technicality of the regulation and was visibly upset at the hearing before me today while discussing the genuineness of her claims, as I have already observed, this was not a standard set by the Tribunal. It is a requirement set by the Regulations, and the Tribunal was not incorrect to find that, in the absence of the statutory declaration, a valid claim (valid in the sense of complying with the Regulations) had not been made. As the Minister’s solicitor pointed out at hearing today, the Tribunal had no discretion to waive this requirement. Accordingly, it is also difficult to see how this ground is arguable, and I am not persuaded that it has a reasonable prospect of success.
Ground 3
The third ground similarly takes issue with the requirement that the applicant provide a statutory declaration. The applicant says that, in her opinion, it is “just a form”, and suggests that the Tribunal was overly concerned with form over substance in the sense that, by not being in the form of a statutory declaration, her claim was not less true, and she generally seeks to impugn the Tribunal’s professionalism. While again I understand the applicant’s frustration with the technicality of the requirements of the Regulations, Division 1.5 commences with r 1.21, which defines a statutory declaration as being “a statutory declaration under the Statutory Declarations Act 1959”.
Section 8 of the Statutory Declarations Act 1959 (Cth) (Statutory Declarations Act) provides that a statutory declaration must be in the prescribed form and made before a prescribed person. The prescribed form is set out in Schedule 1 to the Statutory Declarations Regulations 2018 (Cth). Accordingly, the applicant was required to provide a statutory declaration in the prescribed form under reg 1.24. The first respondent says that this ground does not enjoy a reasonable prospect of success because the applicant had not complied with rule 1.25 and the Tribunal was correct to so find. I agree with that assessment and am of the view that ground 3 of the originating application is not sufficiently arguable.
Ground 4
The final ground says that the Tribunal concluded the applicant did not meet the criteria but that she was not given specific reasons for this. The applicant again asks rhetorical questions as to whether the Tribunal’s decision was real or “simply a mere sham”. While it is true that the Tribunal’s reasons for decision are brief, in the circumstances of this case that is not surprising given that it is not in dispute that the applicant was no longer sponsored in relation to the visa. In the absence of a validly made claim of family violence falling for consideration, the Tribunal was therefore bound to find that the applicant did not meet the criteria for the grant of the visa.
Brevity of reasons would not of itself give rise to an arguable error: see NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279 per Jacobson J at [15]. In the circumstances of this case, as I have already observed, the Tribunal held a more than two-hour hearing and gave the applicant the opportunity to provide post-hearing submissions and documents, an opportunity she took. Further, the Tribunal did not thereafter make a decision for five months, in which time the applicant could have provided further material if she chose to, but she did not.
The suggestion that the Tribunal’s decision is somehow a sham would also be difficult to make out by reference to the brevity of reasons or at all. The applicant appears to have been given a fair hearing opportunity, and there is nothing in the material before me to indicate that this ground would give rise to a sufficiently arguable error as alleged, such that the matter should be reinstated for consideration of these allegations. Accordingly, I find that ground 4 lacks a sufficient prospect of success.
Additional issue
In addition to the grounds in the application for review, the first respondent, as a model litigant, has raised an additional issue. It was initially raised by the written submissions filed for the final hearing, which have been replaced, in part, by the submissions addressing the reinstatement application, and with some slight refinement on this point. Accordingly, in relation to this additional issue, I have had regard only to the submissions filed on 17 May 2022. The Tribunal’s decision at CB 332, [6] stated:
…the Tribunal is satisfied that at the time of decision, the applicant does not continue to be sponsored for the grant of the Subclass 820 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa: Clause 801.221(2)(b).
The first respondent says that although the applicant did not meet that criterion because she was no longer sponsored by the sponsoring partner, the reference to “clause 801.221(2)(b)” was incorrect, because the Tribunal was assessing the applicant against the criteria for a subclass 820 visa. Clause 820.221(2)(b) concerns itself with a circumstance where the sponsoring spouse has died, and there is no clause 801.221(b). However, the Tribunal’s conclusion in relation to clause 820.221(3) is correct. There is a further incorrect reference in the Tribunal’s decision. The Tribunal found the applicant accordingly “could not satisfy clause 801.221(b)” but, as noted, there was no such subclause.
I am asked to infer that the Tribunal intended to refer to clause 820.221(1) at the time of the decision criterion, which the applicant could not meet as she did not continue to meet the requirements of clause 820.221(2).
In Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875, Marshall J said the following at [48]:
Occasionally, the [Tribunal], like other decision-makers, deliver reasons for decision without 100% proofreading. Occasionally, mistakes are not discovered even when the best of proofreaders have examined draft reasons. The existence of a typographical error is best acknowledged rather than attempted to be exploited; see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682.
In Overy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 749 at [30] Judge Lucev considered, inter alia, whether the Tribunal referred to the incorrect clause of Schedule to the Regulations throughout its decision and found:
In relation to the typographical errors whereby cl 3000 of Schedule 3 to the Migration Regulations is referred to instead of cl 3004 of Schedule 3 to the Migration Regulations a fair and whole reading of the Tribunal Decision makes it clear that the Tribunal correctly assessed Ms Overy’s compliance with cl 3004 of Schedule 3 to the Migration Regulations, and did so based on the evidence before it. Properly analysed, and having regard to substance not form, what the Tribunal did was to apply the correct criteria to Ms Overy’s circumstances whilst making a number of numerical typographical errors in referring to the relevant clause of Schedule 3 to the Migration Regulations. Thus, although there were multiple incorrect references to cl 3000 of Schedule 3 to the Migration Regulations, they are no more than mere typographical errors, and are not demonstrative of the Tribunal failing to discharge its statutory task.
The first respondent’s contention that the Tribunal intended to refer to clause 820.221(1) is further bolstered by its reference to clause 820.221(3) at [6] where the Tribunal further considered whether a valid claim of family violence had been made as it had concluded that clause 820.221(1)(a) was not met by the applicant.
The Minister says that even if such an error were found, it would be immaterial because the applicant was plainly not the sponsor of the spouse because he had withdrawn his sponsorship of the applicant and the relationship had ceased. The cessation of the relationship is not disputed by the applicant. Further, it is submitted that the two incorrect references in the Tribunal’s decision at [6] are not material because on the evidence before me there is nothing to indicate that the applicant was the spouse of the sponsor, and she did not make a valid claim of a non-judicially determined claim of family violence, as required by reg 1.24 of the Regulations.
In my view, the present case is similar to the decision of Overy. A full and substantive and contextual reading of the Tribunal’s decision does not suggest that the Tribunal misunderstood the criteria for the visa which it was applying. The assessment of typographical clerical errors always turns uniquely on its own facts, and a full contextual reading of them against circumstances of this case leads me to the conclusion that I concur with the first respondent. Even if the error were to be raised by the applicant it would not have a reasonable prospect of success even at an impressionistic level.
Accordingly, having found similarly in relation to each of the grounds raised for consideration by the originating application, I am of the view that it is not in the interests of the administration of justice to reinstate the application so that it can be determined at a final hearing.
Before concluding, I wish to observe that the applicant has thrice attended Court in person unnecessarily, and in order to do so has travelled from Victoria to New South Wales.
The first time that this occurred was August 2019 when, by reason of not having updated her address for service with the Court when she moved to the Deer Park address, she did not receive the Court’s validly sent notice advising that the callover had been adjourned. It was in this context that she came to lodge the 2019 Notice.
Next, when the applicant filed the reinstatement application, it was listed for a directions hearing before me. Notice of that directions hearing, and the Microsoft Teams link were sent to the applicant at the second email address which, by reference to [34(c)] above, was valid. The solicitor for the first respondent attended via Microsoft Teams. Despite having been sent a link and told to attend online, the applicant made an unexpected in-person appearance. It transpires that the applicant had travelled from Victoria to Sydney on that day to attend Court in person also. The applicant made no mention of having travelled especially, nor so far. On that occasion I listed the matter for hearing on 1 March 2022 with the consent of the parties. I indicated that as COVID-19 restrictions were easing this would likely be in person. Again, the applicant did not raise the fact that she had travelled nor did she request that she not be required to do so for the hearing of the reinstatement application.
It transpires that, therefore, the applicant has attended today for the third time and has travelled from Victoria to New South Wales in order to do so. I apologised to the applicant for the inconvenience caused to her by the unnecessary times that she has attended Court, although in relation to the first two occasions this is because the applicant has failed to continue to update her address during the course of the proceedings.
I accept what the Minister says, which is that the applicant had at least the experience of having updated her address for service on 12 August 2019 which by the applicant’s own admission from the Bar table she did herself at the Queens Square Registry. The applicant also conceded, as I noted earlier, that she at no time made enquiries of the Court as to how to continue to lodge documents with the Court notwithstanding that the Court has had in place alternate methods for the lodging and filing of documents throughout the duration of the COVID-19 pandemic. Had the applicant made enquiries she would have been assisted by the Registry in relation to how to attend to such matters. It is undeniable that the matter has an unfortunate procedural history, much of which can be attributed to the fact that the applicant has not been diligent in the updating of her address albeit she has been quite compliant about attendance at Court dates, with the exception of the final hearing.
In light of this history, when I reserved my judgment at the conclusion of the hearing, I explained to the applicant that when the parties were notified of the fixture for delivery of judgment, that I would ensure this took place via Microsoft Teams to ensure the applicant was not put to the expense once again of travelling to Sydney. I explained to the applicant broadly how that system would operate.
I also asked the solicitor for the Minister to seek instructions in relation to any costs orders to be made on the next occasion, expressing to her my preliminary view that had the omission of the first gmail address from the 2019 Notice been fully appreciated by the first respondent and the Court earlier, a good number of events might have transpired differently and it may be that this should sound in a restrained approach to costs, even if the Minister were successful in resisting the reinstatement application. I was told that instructions would be sought.
Conclusion
Having found that each of the grounds raised for consideration by the originating application lacks a sufficient prospect of success, I am of the view that it is not in the interests of justice to reinstate the application for determination at a final hearing.
Accordingly, the Application in a Proceeding filed on 29 March 2022 is dismissed. I so order.
I will hear the parties as to costs.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 28 June 2022
APPENDIX A
1
11
0