WENG v Minister for Immigration

[2016] FCCA 2172

FEDERAL CIRCUIT COURT OF AUSTRALIA

WENG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2172

Catchwords:
MIGRATION – Failure to attend Tribunal – dismissal of application – invitation to reapply within 14 days – No response – final dismissal – no jurisdictional error – application dismissed – applicant to pay first respondent’s costs.

Legislation:

Migration Act 1958 (Cth), ss.360, 379A, 362B, 362C(5)

Applicant: CAIHUA WENG

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL 

File Number: BRG 89 of 2016

Judgment of: Judge Vasta

Hearing date: 8 August 2016

Date of Last Submission: 8 August 2016

Delivered at: Brisbane

Delivered on: 8 August 2016

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Application filed 3 February 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 89 of 2016

CAIHUA WENG

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 3 February 2016 the Applicant applied to this Court to review a decision of the Administrative Appeals Tribunal. 

2. The history of the matter is that the Applicant, who is a citizen of the Peoples’ Republic of China, lodged an application for a visa on 14 December 2012.  That was a partner visa that had been applied for.  On 24 August 2015 the Minister refused to grant the visa partly because the delegate was not satisfied that the Applicant and the sponsor were in a genuine spousal relationship. 

3. The Applicant decided to appeal that decision to the Administrative Appeals Tribunal.  On 7 September 2015 the Applicant lodged his documents with the Tribunal, including an email address as [email protected]. 

4. On 24 November 2015 the Tribunal invited the Applicant to appear before the Tribunal at a hearing scheduled to take place on 21 December 2015.   According to the court book on 1 December 2015, the Applicant, or rather, the representative for the Applicant responded to that invitation by email. 

5. The Applicant failed to appear at that hearing. 

6. On 24 December 2015, the Tribunal wrote to the Applicant by email and told him that they had dismissed his application because he had failed to attend and had not given a satisfactory reason for not attending. 

7. The Tribunal pointed out that the Applicant could apply, in writing, to reinstate his application, but had to do so by 7 January 2016.  Also attached to that correspondence were the written reasons of the Tribunal, which were dated 23 December 2015.

8. The Applicant did not respond to the Tribunal’s correspondence of 24 December 2015.  The Tribunal then, on 8 January 2016, confirmed the decision to dismiss the application. 

9. On 3 February 2016 the Applicant filed this application.  There are three grounds to the application: 

   “1, I disagree with Immigration and AAT’s decision as I believe that our spouse relation have been genuine and lasting.  DIBP and AAT have not comprehensively and fairly considered my review application and supporting evidence. 

   2, AAT did not give a good and responsible consideration to my review simply because I did not attend the hearing. 

   3,  I don’t  think I have been fairly treated by DIBP and AAT.” 

10. I must look at the legal framework of the Migration Act 1958 (Cth) (“the Act”) to determine these aspects. Section 360 of the Act states

    “360 Tribunal must invite applicant to appear

    (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    (2) Subsection (1) does not apply if:

    (a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

    (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c) subsection 359C(1) or (2) applies to the applicant.

    (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

11. Section 379A prescribes methods by which the Tribunal may give documents to a person, and that includes email.

12. Section 362B of the Act applies when an Applicant has been invited to appear before the Tribunal and has failed to do so.

    362B  Failure of applicant to appear before Tribunal

    Scope

    (1)  This section applies if the applicant:

    (a) is invited under section 360 to appear before the Tribunal; but

    (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

    Tribunal may make a decision on the review or dismiss proceedings

    (1A) The Tribunal may:

    (a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

    (b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

    Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review.

    Note 2: Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.

    Reinstatement of application or confirmation of dismissal

    (1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.

    Note: Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

    (1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:

    (a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or

    (b) confirm the decision to dismiss the application, by written statement under section 368.

    Note 1: Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application.

    Note 2: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

    (1D) If the Tribunal reinstates the application:

    (a) the application is taken never to have been dismissed; and

    (b) the Tribunal must conduct (or continue to conduct) the review accordingly.

    (1E) If the applicant fails to apply for reinstatement within the 14‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.

    Note: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

    (1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

    (1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

    Other measures to deal with failure of applicant to appear

    (2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

13. A written statement made under s.362C(5) of the Act states :

    “(5) The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:

    (a) within 14 days after the day on which the decision is taken to have been made; and

    (b) by one of the methods specified in section 379A.”

14. If such an application is made and the Tribunal reinstates the application, then the application is taken to have never been dismissed and the matter just proceeds as normal.   But if the Applicant fails to apply within that 14 day period, then the Tribunal must confirm the decision to dismiss the application.

15. Now, when I look at what the Tribunal has done, they have complied in all respects with that legislation.  They did invite the Applicant to attend.  He, through his agent, replied on 1 December 2015 that he would attend.  When he did not attend, the Tribunal dismissed the application, and they were entitled to do that pursuant to the legislation. 

16. They were obliged to then inform the Applicant that they had dismissed the application and provide him with the written statement.  This they did. 

17. They did invite him to apply for reinstatement of the application by 7 January, which was 14 days after they had sent the email on 24 December 2015.  When he did not make an application, the Tribunal had no option but to confirm the dismissal of the application. 

18. Therefore, there has been nothing that the Tribunal has done that is in any way contrary to the legislation.  Therefore, I cannot find that there has been any jurisdictional error.

19. In relation to the grounds of the review, ground 1 does say that the Applicant disagrees with the decision of the Minister.  I have no jurisdiction to look at the decision of the Minister here, because anything that happened by that review is looked at by the AAT.  I only have jurisdiction to look at what the AAT has done.

20. The complaint that the AAT has not comprehensively and fairly considered his review application and supporting evidence is correct, but under the legislation and because of the Applicant’s non-appearance, there is no obligation upon the AAT to do so.  The ground is really a statement of fact, but it has no standing in law and is not illustrative of a jurisdictional error.

21. The second ground, that the AAT did not give a good and reasonable consideration to my review simply because I did not attend the hearing, is again a statement of fact, and there is no legal standing for this ground and no jurisdictional error that has been identified.

22. The third ground, that “I don’t think I have been fairly treated by DIBP and AAT,” is not something that I can concern myself with.  I must concern myself whether the AAT has complied with the legislation.  In the circumstances of this case, if the AAT has complied in all respects with the legislation, then there is necessarily fair treatment.

23. The Applicant was invited by me on 4 April 2016 to provide written submissions.  He has not done so.  But to his credit, he has appeared here today with the aid of an interpreter.  He has given what he thinks may have been an explanation, that the email went to a junk mail folder and was not seen, or that he did receive the email and had an error as to what the dates actually were.

24. In his final submission to me he said that there was nothing that he could show me that illustrated that the Tribunal was incorrect in anything that they did, but he simply wanted to have a proper consideration of his claims.  As I said, that is not a matter for me.  I can only ensure that there has been proper compliance with the legislation.

25. Therefore, having found no jurisdictional error, I must dismiss this application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date:1 September 2016