Aat17 v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2022] FedCFamC2G 513

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AAT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 513

File number(s): SYG 16 of 2017
Judgment of: JUDGE OBRADOVIC
Date of judgment: 1 July 2022
Catchwords: MIGRATION – Reinstatement – application to reinstate – where the application was dismissed at final hearing for non-attendance – where the applicant did not attend the final hearing – no reasonable excuse for non-attendance – no arguable prospects of success – reinstatement refused.
Legislation:

Migration Act1958 (Cth) s.5J

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr.6.01, 13.06

Cases cited:

Abebe v Commonwealth [1999] HCA 14
Amin v Minister for Immigration and Multicultural Affairs [2000] FCA 1811
Koppalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17

Minister for Immigration and Multicultural AffairsvRespondents S152/2003 [2004] HCA 18

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Division: Division 2 General Federal Law
Number of paragraphs: 59
Date of hearing: 31 May 2022
Place: Parramatta
Appearing for the Applicant: In person with the assistance of an interpreter
Solicitors for the First Respondent: Minter Ellison

ORDERS

SYG 16 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AAT17

Applicant

AND:

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

1 JULY 2022

THE COURT ORDERS THAT:

1.The application in a proceeding filed 1 April 2022 is dismissed.

2.Amend the first respondent’s name to Minister for Immigration, Citizenship, and Multicultural Affairs.

3.The applicant pay the first respondent’s costs fixed in the amount of $3,900.

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 OBRADOVIC:

  1. On 1 April 2022 the applicant filed an application in a proceeding seeking reinstatement of his judicial review application filed on 4 January 2017.

  2. The original application for judicial review was dismissed on 3 February 2022, pursuant to Rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, after the applicant failed to appear at the final hearing.

  3. The applicant was also ordered to pay…

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Details
AGLC
Aat17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 513
Case
[2022] FedCFamC2G 513
Decision Date

CaseChat Overview and Summary

The case of Aat17 v Minister for Immigration, Citizenship and Multicultural Affairs involves an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The applicant, a citizen of Bangladesh, had previously applied for a protection visa in Australia, citing political persecution and threats due to his family's political activities and his own involvement in political parties. His application for the protection visa was denied by a delegate and subsequently upheld by the AAT. The applicant then sought judicial review of the AAT's decision, but did not appear at the scheduled hearing, leading to the application being dismissed for default. The applicant subsequently applied for reinstatement of the judicial review application.

The legal issues before the court included whether the applicant's absence from the hearing on 3 February 2022 could be excused, and if the application for judicial review had reasonably arguable prospects of success. The court considered whether the applicant had provided a reasonable explanation for his absence, and whether the proposed grounds of judicial review were sufficient to warrant reinstatement.

The court found that the applicant had not provided a reasonable explanation for his absence from the hearing, and that the mere absence of prejudice to the respondents was not sufficient to warrant reinstatement. The court also found that the application for judicial review did not have reasonably arguable prospects of success, as the applicant had not particularised the alleged errors in fact or reasonable discretion, and had failed to point to any evidence going to the conduct of the receiving state or the issue of the receiving state refusing to act or tolerating the conduct of the individual group. The court was concerned that there should be finality in the matter, and dismissed the application for reinstatement with costs.

The court dismissed the application for reinstatement of the judicial review application, with costs. The court found that the applicant had not provided a reasonable explanation for his absence from the hearing, and that the application for judicial review did not have reasonably arguable prospects of success. The court was concerned that there should be finality in the matter, and therefore dismissed the application with costs.

Orders

Orders of the court

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Background

Background to the litigation

The first respondent opposes the application for reinstatement.Background and Protection Claims The applicant is a citizen of Bangladesh and arrived in Australia on 18 November 2006. At the time of his arrival the applicant held a Student visa (subclass 573 visa). The applicant applied for a protection visa on 13 March 2015. The applicant made a number of claims in his application for a protection visa, which may be summarised as follows:(a)The applicant’s father and wider family are politically active in Bangladesh;(b)The applicant had been threatened, attacked, beaten, and shot at on multiple occasions, due to his political views and his, and his family’s, political involvement;(c)The applicant’s father is a prominent political figure who served as a high ranked army official, who also served and participated in direct military action against the Pakistani Military. Since 2014 the applicant’s father has been a significant member of a well-known political party (“Party X”). The applicant's father has also been previously involved with other significant political parties in different capacities.(d)The applicant was politically active, supporting his father, attending political meetings, events, and demonstrations. He is a member of and worked for Party X, providing ongoing advice on policies and party objectives. The applicant also says that he was a member of and activist with two other political parties which will be referred to as “Party Y” and “Party Z”;(e)The applicant’s family members, including his cousins, have been “burnt to death” and “poisoned”;(f)Members of the Party X have experienced physical harm, have been politically persecuted, and arrested;(g)The applicant feared that a particular named battalion would arrest or kill the applicant if he returned to Bangladesh;(h)The applicant had received death threats on multiple occasions, including through phone calls;(i)The applicant fears harm if he returns to Bangladesh as a result of his and his family’s political ties and activism. Moreover, he fears he will be open to extortion as he will be perceived to have money, and wealth, as he has been living in a western country for many years. He also fears harm as he borrowed a substantial amount of money from his family trust to fund his immigration to Australia. On 6 November 2015 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“delegate”) refused the applicant’s application for a protection visa. The applicant applied for review of the delegate’s decision to the Administrative Appeals tribunal (“tribunal”) on 2 December 2015. The applicant appeared before the tribunal via video link on 11 November 2016 and 6 December 2016 to provide evidence and submissions regarding his protection claims. On 6 December 2016 the tribunal upheld the decision of the delegate. On 4 January 2017 the applicant filed an application for judicial review of the tribunal decision. The application for judicial review was first listed for hearing on 22 July 2021.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In respect of the additional matters raised by the applicant in his application for re-instatement (using the same numbering as in [40] above):(a)The applicant has not particularised which documents were overlooked and in any event the application was dismissed for default not summarily;(b)The responsibility for making his case and deciding what evidence he relies upon in making his case, rests upon the applicant.[18] The applicant’s assertion does not support the contention that the tribunal failed to make an obvious enquiry about a critical fact.[19] (c)This is a similar argument to the one addressed in respect of ground 2 above.(d)While it appears that the tribunal did not make a cumulative assessment, the tribunal has no such obligation in circumstances where the individual claims have been rejected as a factual matter or have been the subject of findings that they did not give rise to a real or significant risk of harm upon return to the receiving country.[20] The applicant in his oral submissions also relied upon argument that “Where fear of persecution springs from the conduct of the State and there is a real chance that the conduct will continue and affect the asylum seeker, a finding that the fear is well-founded will be virtually inevitable.”[21] However, the applicant failed to point to any evidence going to the conduct of the receiving state or indeed the issue of the receiving state refusing to act or tolerating the conduct of the individual group, such that it is complicit.(e)There is no particularisation of the alleged notable errors in fact and errors in reasonable discretion. The particularised assertions contained in the application for review have already been addressed as has the assertion as to a failure to provide procedural fairness.[18] Abebe v Commonwealth [1999] HCA 14 at [187][19] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25][20] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32]-[34][21] Minister for Immigration and Multicultural AffairsvRespondents S152/2003 [2004] HCA 18 at [76]Conclusion The Court finds that the applicant has not provided a reasonable explanation for his absence from the hearing on 3 February 2022. The mere absence of prejudice to the respondents is not a reason of itself to grant the reinstatement. The Court is concerned that there should be finality in this matter. Lastly, the Court upon a consideration of the proposed grounds of judicial review, is not satisfied that the application has reasonably arguable prospects of success such as to warrant the Court exercising its discretion to reinstate the matter. Accordingly, the application for reinstatement is dismissed with costs.

Ratio Decidendi

Legal Principle Established

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