Federal Court of Australia

BSU15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 50

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NICHOLAS J:

Background

1    Before me is an appeal from a judgment of the Federal Circuit Court of Australia (as it then was) dismissing an application for judicial review of a decision of the second respondent (“the Tribunal”) dismissing pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (“the Act”) an application for review of a decision refusing an application for a protection visa lodged on 26 March 2013. The appellant’s application for a protection visa was refused by a delegate of the first respondent (“the Minister”) on 8 May 2014. This was the third protection visa application which the appellant had filed.

2    In her protection visa lodged on 26 March 2013 the appellant claimed to be a Chinese national and feared harm due to her Korean/Chinese ethnicity. Her claims were later expanded to include harm due to her Korean ethnicity, Christianity, domestic violence, ill health and other matters.

3    On 31 July 2015 a differently constituted Tribunal affirmed the delegate’s decision refusing to grant the appellant a protection visa. However, consent orders were made on 27 August 2017 quashing that decision and remitting the application for reconsideration due to the Tribunal’s failure to disclose to the appellant the existence of a non-disclosure certificate and documents the subject of that certificate and the Tribunal’s misinterpretation of s 91WA of the Act.

4    On 5 September 2017 the Tribunal wrote to the appellant advising that her application for a protection visa had been remitted to the Tribunal for reconsideration. It appears that Tribunal staff telephoned the appellant that day on the mobile number she had previously provided in order to confirm her contact details. During that telephone call she confirmed her telephone number, her address and her email address. She also indicated in that call that she wished correspondence to be sent to her by post.

5    However, on 23 October 2017 the appellant lodged with the Tribunal, forms signed by her stating (inter alia) that she agreed to all correspondence being provided by email and appointing Mr Choi as her representative. The email address and the postal addresses for Mr Choi and the appellant were the same although they had different mobile numbers.

6    On 8 April 2019 the Tribunal sent to Mr Choi at the nominated email address an invitation to attend a hearing before the Tribunal on 7 May 2019 at 1.00pm. The appellant did not attend the hearing on 7 May 2019. Later that day the Tribunal sent to Mr Choi at the nominated email address documents notifying the appellant of the dismissal of her application for review and the Tribunal’s reasons for dismissing her application under s 426A(1A)(b) of the Act. These documents included a letter to the appellant advising that the appellant could apply for reinstatement of the application by 21 May 2019.

Decision of 7 May 2019

7    The Tribunal’s statement of reasons dated 7 May 2019 record that on 8 April 2019 it sent the hearing invitation to the nominated email address. It also records that two separate SMS reminders were sent to the appellant’s mobile number on 30 April 2019 and 6 May 2019. It further records that after the appellant did not appear at the hearing, Tribunal staff telephoned Mr Choi’s mobile number and left a message on his voicemail and that they also telephoned the appellant’s mobile number. No response was received to either call.

8    The Tribunal noted in its reasons that in the call on 5 September 2017 the appellant stated that “she sought her correspondence be sent by post”. It then referred to the forms lodged by the appellant on 23 October 2017 agreeing to all correspondence being provided by email.

9    The Tribunal stated in its reasons that it was satisfied that the appellant had been properly invited to appear at the hearing, that the invitation had not been returned to sender, and that two separate SMS reminders were also sent to the appellant about the hearing. It observed that no satisfactory reason for her non-appearance had been given.

Decision of 22 May 2019

10    On 23 May 2019 the Tribunal wrote to both the appellant and Mr Choi at the nominated email address notifying them of the decision to dismiss the appellant’s application for a review and confirming that decision. The Tribunal enclosed a copy of its decision of 22 May 2019 and a statement of its reasons of the same date which noted that the appellant did not apply for reinstatement of the application for review within 14 days of the decision.

Subsequent Events

11    Late the next day, Mr Choi sent an email to the Tribunal advising that both he and the appellant were “tremendously shocked” by the email of 23 May 2019 and advising that both of them were unaware that an invitation for the hearing had been issued. In his email Mr Choi advised that he moved to an alternative email address due to difficulties with his service provider. According to Mr Choi’s email:

As [the appellant’s] application was lodged many years ago, I had forgotten that the Hanmail address [ie. @hanmail.net] was the nominated correspondence, and failed to notify you of the change in the preferred email address. It was only by chance that I checked my Hanmail address today and noticed the correspondence from the Tribunal. I am aware that the fault is mine, but would like to plead that my awareness of the email invitation to the hearing is due to a genuine mistake.

12    According to Mr Choi’s email, the appellant informed him that she did not know that the SMS messages she received were sent by the Tribunal due to her inability to understand English. With regard to the call by the Tribunal staff on the day of the hearing, Mr Choi stated that he was “in the middle of a meeting and was unable to accept the call”. He said that the appellant appeared also to have been unable to pick up the call made to her. His email does not explain why he failed to respond to the Tribunal’s voicemail message.

The Primary Judge’s Decision

13    The appellant was represented by counsel at the hearing of the application before the primary judge but not at the hearing of the appeal.

14    The primary judge granted the appellant an extension of time pursuant to s 477(2) of the Act. His Honour then turned to the appellant’s two grounds of review which (omitting particulars) were as follows:

1.    Jurisdictional error. The Tribunal’s failure to exercise the discretion in s 426(A)(2)[sic] of the Act so as to reschedule a hearing in circumstances where:

(i)    the Applicant’s application is a Protection Visa application and non-determination of her case would lead to her return to a country where she fears harm of persecution;

(ii)    the Applicant does not read or write in English; and

    Section 426A(2)[sic] of the Act empowered the Tribunal to reschedule a hearing, was unreasonable, leading to a Tribunal decision that is plainly unjust and lacking an evident and intelligent [sic] justification.

2.    Jurisdictional error. The Tribunal erred by taking into account irrelevant consideration, in the course of exercising or considering to exercise its discretionary power, pursuant to s 426(A)(1)(b) [sic] of the Act leading to jurisdictional error.

15    His Honour rejected each of those grounds. He concluded that in exercising its discretion under s 426A(1A), the Tribunal did not act unreasonably. He also concluded that in exercising its discretion under s 426A(1A) the Tribunal did not take into account any irrelevant consideration.

16    On 4 June 2020, the appellant filed a notice of appeal raising two grounds that essentially repeat the two grounds for judicial review relied on before the primary judge.

Relevant Statutory Provisions

17    Section 426A of the Act provides:

426A    Failure of applicant to appear before Tribunal

Scope

(1)    This section applies if the applicant:

(a)    is invited under section 425 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 430, 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 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

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 426B, apply to the Tribunal for reinstatement of the application.

(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 426B; or

(b)    confirm the decision to dismiss the application, by written statement under section 430.

…

(notes omitted)

18    Section 441G(1) of the Act requires the Tribunal to give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Section 441G(2) provides that if the Tribunal has given a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant.

Consideration

19    In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained at [11] that when reviewing a decision for legal unreasonableness:

… [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

20    A finding that a decision to dismiss an application pursuant to s 426A(1A)(b) is legally unreasonable is not available where the decision is within an area in which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] per Hayne, Kiefel and Bell JJ. In the present case it is not enough that reasonable minds might differ as to whether or not the Tribunal’s decision to dismiss the application was appropriate in the circumstances.

21    Ground 1 alleges the primary judge erred in failing to find that it was unreasonable for the Tribunal not to reschedule the hearing in circumstances where:

(a)    the appellant was seeking review of a decision relating to her protection visa application and non-determination of the appellant’s case would lead to her return to a country where she feared harm;

(b)    the appellant did not read or write in English; and

(c)    s 426A(1A) of the Act provided a discretion for the Tribunal to reschedule the hearing.

22    The power to dismiss under s 426A(1A)(b) is discretionary and must be exercised reasonably.

23    In support of her assertion that the Tribunal’s exercise of discretion was unreasonable, the appellant points to her status as a protection visa applicant and her claimed inability to read or write in English. However, as s 426A is contained in Part 7 of the Act, it necessarily follows that it will apply to applications for review of protection visas. Further, the appellant appointed a representative to assist and represent her before the Tribunal. Neither the nature of the review nor the appellant’s inability to understand English render the Tribunal’s exercise of the discretion unreasonable.

24    The Tribunal’s hearing invitation was sent to the appellant’s nominated email address in accordance with the requirements of the Act. The Tribunal also sent two SMS reminders to the appellant prior to the hearing. On the day of the hearing the Tribunal attempted to contact both the appellant and her representative by telephone on mobile numbers they had provided to the Tribunal. Nothing was heard from either the authorised representative or the appellant until 24 May 2019.

25    In all the circumstances, it has not been shown that it was unreasonable for the Tribunal to exercise the discretion under s 426A(1A)(b) to dismiss the application. In particular, the Tribunal’s decision to do so cannot be characterised as plainly unjust, or as lacking any evident or intelligible justification. Because the appellant did not apply for reinstatement of her application in accordance with s 426A(1B), the Tribunal lacked power to reinstate it.

26    Ground two alleges the primary judge erred in failing to find that the Tribunal took into account an irrelevant consideration in exercising the discretion in s 426A(1A). Two complaints arise from the accompanying particulars.

27    The first complaint is that it was unreasonable for the Tribunal to rely on untranslated SMS reminders to demonstrate that it made attempts to reach the appellant even though the Tribunal was not required to give notice of the hearing to the appellant in her native language. However, the SMS reminders sent to the appellant were additional steps taken by the Tribunal to ensure the appellant was aware of the hearing. The Tribunal was not to know that they would be ignored by the appellant.

28    The second complaint is that it was unreasonable for the Tribunal to rely on SMS reminders sent directly to the appellant in circumstances where the appellant had appointed an authorised recipient. The Tribunal was not required to send the SMS reminders to the appellant or her authorised representative. But the fact that they were sent to the appellant was plainly relevant to the Tribunal’s exercise of the discretion.

29    It was open to the Tribunal in making a decision under s 426A(1A)(b) to take into account additional actions that it had taken to ensure the appellant was aware of the scheduled hearing.

The appellant’s oral submission

30    The appellant made submissions directed to her personal circumstances including the length of time she had lived in Australia and her desire to remain here. Those submissions are not relevant to the issues that arise in the appeal. However, the appellant also emphasised in her oral submissions that she had previously indicated a preference for receiving written communications from the Tribunal at her postal address. That was a matter which the Tribunal expressly referred to in its reasons. It also referred to the appellant’s subsequent communications with the Tribunal in which she gave notice that she agreed to all correspondence being sent to her authorised representative by email.

Disposition

31    The primary judge’s decision to dismiss the amended application was correct. His Honour was not shown to have made any material error in arriving at that conclusion. The appeal will be dismissed with costs.

32    Orders accordingly.

Associate:

Dated:    3 February 2023