CZM17 v Minister for Immigration & Anor [2018] FCCA 1587

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 June 2017. The Tribunal confirmed a decision it had made on 22 May 2017 to dismiss the applicant's review application on account of his non-attendance at the hearing to which he was invited.
2. The background facts relating to this matter are set out in the Minister's submissions filed on 6 June 2018.
3. The applicant is a citizen of Malaysia, who arrived in Australia on 13 July 2016 on an electronic travel authority (class UD) (subclass 601) visa.[1] The applicant applied for a protection (class XA) visa (protection visa) on 6 September 2016, claiming to fear harm from illegal money lenders.[2]
4. On 14 November 2016, a delegate of the Minister (delegate) refused to grant the applicant a protection visa.[3]
5. The applicant sought review of the delegate's decision before the Tribunal by application dated 2 December 2016.[4] On this application, the applicant provided the email address tokaji.purple@gmail.com (the applicant's email address), and a mobile number (the applicant's mobile number).[5]
6. By letter dated 3 May 2017, the applicant was invited to attend a hearing before the Tribunal on 22 May 2017.[6] That letter was sent by email to the applicant's email address.[7] The letter enclosed a hearing invitation, and advised the applicant that if he did not attend the scheduled hearing the Tribunal may dismiss the application without any further consideration of the application or the information before it.[8]
7. On 15 May 2017 and 19 May 2017, the Tribunal sent short message service (SMS) hearing reminders to the applicant's mobile number (the hearing reminders).[9] The hearing reminders stated that the applicant's Tribunal hearing was scheduled for 22 May 2017, and to contact the Tribunal on the specified number if the applicant had any questions.
8. The applicant did not attend the scheduled hearing on 22 May 2017.[10] Accordingly, on the same day, the Tribunal dismissed the application under s.426A(1A)(b) of the Migration Act 1958 (Cth) (Migration Act). By email dated 22 May 2017, the Tribunal sent correspondence to the applicant's email address,[11] attaching:

1. a letter dated 22 May 2017, notifying the applicant of its decision to dismiss the application for review owing to the applicant's failure to attend the scheduled hearing;[12] 2. a brochure titled "Information about dismissal of applications - MR Division", which specified that the applicant could apply for reinstatement of the application within 14 days after receiving the notice of dismissal;[13] and

1. the dismissal decision dated 22 May 2017.[14]

1. On 6 June 2017, the Tribunal confirmed the dismissal decision under s.426A(1E) of the Migration Act. By email dated 6 June 2017, the Tribunal emailed the applicant a copy of its confirmation decision.[15]
2. The Tribunal acknowledged the nature of the application and dismissal decision, and noted that the applicant was "notified of the dismissal decision" and that he had been advised that an application for reinstatement could be made within 14 days.[16] As no such reinstatement application had been made, the Tribunal found it "must confirm the decision to dismiss the application".[17]

1. These proceedings began with a show cause application filed on 4 July 2017. The applicant appeared uncertain whether he wished to continue to rely upon that application. At one point, he told me that it was only a story prepared by a friend. He did, however, ultimately tell me that he continued to rely upon the application.
2. The three grounds in the application are:
   • 1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
     • The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns to Malaysia.
   • 2. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.
   • 3. The Tribunal decision was fundamentally influenced by not receiving evidence from the applicant at the hearing. The Respondent acted on assumption that the applicant had received its invitation to appear before the Tribunal.

1. The application is supported by an affidavit filed with it. I received that affidavit as a submission. The material submissions are:
   • 1. I am a Malaysian citizen applied for protection visa under the refugee convention. The delegate of the Minister refused to grant my visa. And the tribunal affirmed the decision without giving me opportunity to present my case.
   • 2. The Tribunal decision was unjust and was made without giving me the opportunity to present my arguments and denied me natural justice. Herewith I attached AAT decision.
2. I have before me as evidence the court book filed on 31 October 2017 and a supplementary court book which I marked as exhibit R2.
3. I also received the affidavit of Mr Dimmock. Mr Dimmock deposes as to two SMS hearing reminders sent to the applicant on 15 and 19 May 2017.
4. Exhibit R1 is a bundle of correspondence and emails from the Minister's solicitors to the applicant at various addresses. I received that bundle this morning, when the applicant failed to appear at the 9.30am scheduled time for today's hearing. The Court was unsuccessful in contacting the applicant on his nominated mobile telephone number. The Court was, however, successful in contacting a male person on an alternative number provided by the applicant in his affidavit. That person ultimately informed the Court that he was a friend or housemate of the applicant, and informed the Court that the applicant had gone to Sydney from Griffith to attend today's hearing at 2.30pm. With that in mind, I stood over the hearing until 2.30pm.
5. The applicant appeared at 2.30pm today and explained that he understood that the hearing was at 2.15pm based upon draft orders that had been sent to him for consideration prior to the first court date in this matter. With that in mind, the hearing then proceeded.
6. The applicant complained that he had only received the court book recently. I explained the contents of the court book to the applicant and he accepted that the documents did not come as a surprise to him. In my view, he has not been disadvantaged by any late receipt of the court book.
7. It appears that the applicant has changed addresses and telephone numbers fairly frequently. He provided a new mobile telephone number for the Court's reference and that of the Minister's solicitor.
8. The applicant also said that he had not received the Minister's written submissions. With that in mind, I had the Minister's solicitor present her submissions first and invited the applicant to respond.
9. He considers that the outcome before the Tribunal was unfair because he lost his hearing opportunity. He says that he did not receive the notifications sent to him by email because his smartphone was broken at the time. While that may be true, the Tribunal was not put on notice of any problem. The Tribunal was entitled to communicate with the applicant at his nominated email address. The applicant continues to use the same email address in these proceedings.
10. While the circumstances may have been unfortunate for the applicant, they do not point to any argument of jurisdictional error by the Tribunal. In other respects, I agree with the Minister's submissions.
11. The applicant's affidavit in support of the application annexes the confirmation decision. The Minister notes (consistently with an earlier decision of mine) that it has been held that a more "fertile forensic field" might be explored if the applicant were to amend the application and seek review of the dismissal decision.[18] In the circumstances of this case, it was open for the Court to grant the applicant leave to amend the application to seek review of both decisions, as was done by the Court in AYT16 and Haq. While not granting leave for an amendment (and none was sought), I have considered both decisions.

1. Grounds 1 and 2 are template grounds which have been raised in numerous matters, and which do not engage with the Tribunal's decision in this matter.[19]
2. Contrary to the applicant's contention that the Tribunal misconstrued the risk and fear of significant harm under s.36(2A) of the Migration Act, the Tribunal did not consider the applicant's protection claims, and further, did not need to consider the applicant's protection claims, because it dismissed his application for non-appearance under s.426A(1A)(b) of the Migration Act, which allows the Tribunal to dismiss the application "without any further consideration of the application or information before the Tribunal".
3. Insofar as the applicant alleges that the Tribunal did not have jurisdiction to make its dismissal decision, and that the decision was not made in accordance with the provisions of the Migration Act, this ground further misapprehends the Tribunal's procedure in circumstances where the Tribunal exercised its discretion to dismiss proceedings under s.426A of the Migration Act, in circumstances where the applicant failed to appear before the Tribunal.

1. This ground takes issue with the Tribunal's "assumption that the applicant had received its invitation to appear before the Tribunal". Pursuant to s.425 of the Migration Act, the applicant was invited to appear before the Tribunal.[20] The hearing invitation letter dated 3 May 2017:

1. gave the applicant notice of the time, date and place on which he was scheduled to appear;[21] 2. was sent by a method specified in s.441A of the Migration Act, by email to the applicant's email address provided by the applicant to the Tribunal,[22] and being the last email address provided to the Tribunal by the recipient in connection with the review;[23]

1. gave the applicant more than the 14 days' notice prescribed by regulation 4.35D(3)(a) and sub-regulation 4.35D(3)(b)(i) of the Migration Regulations 1994 (Cth);[24] and

1. enclosed an "Information about hearings - MR Division" brochure, which contained a statement to the effect of s.426A.[25]
2. The hearing invitation letter was given by the method specified in s.441A(5). Accordingly, the applicant was taken to have received the invitation letter at the end of the day on which the document was transmitted, that is 3 May 2017,[26] and irrespective of whether or not he actually received it.[27]
3. The Tribunal further sent the applicant two SMS hearing reminders to the applicant's mobile number, on 15 May 2017 and 19 May 2017.[28] The applicant was reminded about the hearing scheduled for 22 May 2017, and was provided with a number that he could contact the Tribunal on if he had any questions.
4. I find that the Tribunal correctly invited the applicant to a hearing before it in accordance with section 425A of the Migration Act. I further note that, even though the Tribunal was not obliged to take further steps to invite the applicant to the hearing,[29] the Tribunal sent two SMS hearing reminders to the applicant's mobile number.
5. Insofar as the third ground, which alleges the Tribunal did not receive evidence from the applicant at the hearing, is to be construed as an allegation that the Tribunal did not provide the applicant with an opportunity to submit evidence (either before or at the hearing), the Minister submits that the applicant was provided with the opportunity to submit evidence to the Tribunal in advance of the scheduled hearing. The applicant, however, after having lodged his application for review to the Tribunal, did not take any steps to submit material to the Tribunal or otherwise actively engage in the review. The applicant in my view demonstrated that he was not "actively seeking" to engage in the review with the Tribunal.[30]

1. The applicant was correctly notified of the dismissal decision, as the letter notifying the applicant of the dismissal decision (and its accompanying documents) complied with the requirements of s.426B of the Migration Act. That is:

1. the accompanying written statement set out the decision, the reasons for the decision, and the day and time the statement was made);[31] 2. the Tribunal gave the applicant a copy of the written statement within 14 days after the day on which the decision was made;[32]

1. the written statement was sent by a method specified in s.441C of the Migration Act, by email to the last email address provided to the Tribunal by the applicant in connection with the review;[33] and

1. the written statement was accompanied by an "Information about dismissal of applications - MR Division" brochure which described the effect of s.426A(1B) to (1F).[34]
2. For the purposes of s.441C(5), as the dismissal decision was given by the method in s.441A(5), the applicant 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. Accordingly, the Tribunal correctly notified the applicant of the dismissal decision.

1. Sub-section 426A(1E) provides that, if the Tribunal dismisses an application for non-appearance, the applicant may, within 14 days after receiving notice of the decision under s.426A, apply to the Tribunal for reinstatement of the application. Under s.462B(1E), if an applicant fails to apply for reinstatement within the 14-day period, the Tribunal "must confirm the decision to dismiss the application, by written statement under section 430". As the applicant did not make an application for reinstatement, the Tribunal was required to confirm the decision to dismiss the application, as it proceeded to do.

1. The Minister accepts that the power to dismiss the application under s.426A(1A)(b) of the Migration Act (and the power, on an application for reinstatement, to reinstate the application under s.426A(1C)) is conditioned by legal reasonableness in the sense contemplated in Minister for Immigration v Li[35].
2. The question of whether a Tribunal exercised its discretion reasonably is fact specific.[36] The facts of this particular matter demonstrate that the Tribunal's dismissal decision fell within the range of possible, acceptable outcomes that are defensible in respect of the facts and law.[37] In particular, I note the following points:

1. the applicant was correctly invited to a hearing before the Tribunal; 2. the applicant was sent two SMS hearing reminders in advance of the Tribunal hearing;[38]

1. the applicant was aware of the hearing date and had the opportunity to apply for reinstatement, which he did not; and

1. the applicant did not otherwise actively seek to engage with the Tribunal.
2. In those circumstances, the Tribunal's decision to dismiss the application under s.426A(1A)(b) of the Migration Act was open to it on the material before it, and its reasons provide an evident and intelligible justification for that decision.[39] As the applicant did not make an application for reinstatement, the Tribunal was required to confirm the decision to dismiss the application.

1. The affidavit of the applicant made on 3 July 2017 alleges that he was denied natural justice. The applicant claims that the Tribunal affirmed the decision without giving him an opportunity to present his case, and that accordingly, the Tribunal's decision was unjust.
2. Division 4 of Part 7 of the Migration Act is an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with.[40] The applicant was invited to attend a hearing pursuant to s.425 of the Migration Act.[41] The applicant was further afforded an opportunity to apply for reinstatement following the Tribunal's dismissal decision under s.426A(1A)(b) of the Migration Act.[42]
3. Sub-section 426A(1E) provides that, if there is no application for reinstatement of an application within the 14 day period set out in s.426A(1B) of the Migration Act, the Tribunal must confirm the decision. As the applicant did not apply for reinstatement, the Minister submits that the Tribunal correctly confirmed the decision to dismiss the application.
4. Further, the Tribunal's obligations pursuant to s.424A of the Migration Act were not enlivened.

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
2. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606. The applicant inquired about time for payment and about his future options in relation to remaining in Australia. He did not oppose the making of a costs order.
3. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver

[9] Annexure TJD01 to the affidavit of Tristan James Dimmock made on 20 December 2017

[18] AYT16 v Minister for Immigration [2017] FCA 252 at [12]; Haq v Minister for Immigration & Anor [2018] FCCA 683 at [17]- [18]

[19] See for example BUP16 & Ors v Minister for Immigration & Anor [2017] FCCA 1782; ACB17 v Minister for Immigration & Anor [2017] FCCA 1880 and BHL16 v Minister for Immigration & Anor [2017] FCCA 1958

[21] Section 425A(1) of the Migration Act

[23] Section 441A(5)(b) and (d)

[24] Section 425A(3)

[25] Section 425A(4)

[26] Section 441C(5) of the Migration Act

[27] SZOBI v Minister for Immigration (No.2) (2010) 119 ALD 233; [2010] FCAFC 151

[28] Annexure TJD01 to the affidavit of Mr Dimmock

[29] Minister for Immigration v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 at [39]; BZAHM v Minister for Immigration [2015] FCA 675

[30] Kaur v Minister for Immigration (2014) 141 ALD 619; [2014] FCA 915 at [96]

[31] Section 426B(2)(a), (b) and (d)

[32] Section 426B(5)(a) and (b)

[33] Section 441C(5)(b)

[34] Section 426B(6)

[35] (2013) 249 CLR 332; [2013] HCA 18

[36] Minister for Immigration v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [63]; Minister for Immigration v SZVFW (2017) 248 FCR 1; [2017] FCAFC 33 at [38]; [44]

[38] CER15 v Minister for Immigration [2016] FCA 1057 at [42] (Markovic J); SZOPV v Minister for Immigration [2016] FCA 514 at [13] (Pagone J)

[40] Section 422B of the Migration Act