ABE19 v Minister for Immigration
[2020] FCCA 386
•27 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABE19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 386 |
| Catchwords: MIGRATION – Application for reinstatement of judicial review application – application was dismissed by Registrar due to applicant’s non-appearance – protection visa – legal unreasonableness – procedural fairness – no error established – application dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.17A, 104 |
| Cases cited: CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 |
| Applicant: | ABE19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 4 of 2019 |
| Judgment of: | Judge Brown |
| Hearing date: | 10 February 2020 |
| Date of Last Submission: | 10 February 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 27 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr Cummings |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The first respondent’s name be changed to “Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs”.
The application filed 7 January 2019 and the reinstatement application filed 19 June 2019 are dismissed.
The applicant pay the first respondent’s costs in the amount of one thousand four hundred and ninety-five dollars ($1,495.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 4 of 2019
| ABE19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to an application for reinstatement of proceedings, which were dismissed by a Registrar of the Court on 1 March 2019, when the applicant concerned failed to appear on the first date appointed for the return of his application.
The dismissed application related to judicial review proceedings of a decision of the Immigration Assessment Authority,[1] which affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection[2] not to grant the applicant a protection visa pursuant to the provisions of the Migration Act 1958.[3]
[1] Hereinafter referred to as “the IAA”
[2] As the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs was formerly known.
[3] Hereinafter referred to as “the Act” or “the Migration Act”
The Registrar’s power to dismiss proceedings arises from Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001, which reads as follows:
“(1) If a party to a proceeding is absent from a hearing (including a first court date), the court may do one or more of the following:
…
(c) if the absent party is an applicant – dismiss the application;”
The applicant is a citizen of Sri Lanka, who arrived in Australia on 17 November 2012. Subsequently, on 9 August 2016 he applied for Australia’s protection on the basis that he was liable to persecution, if returned to Sri Lanka, on the basis of his Tamil ethnicity; his real and imputed association with the LTTE; and the circumstances surrounding his illegal departure from Sri Lanka and the fact that he had applied for asylum in this country.
Since his arrival in Australia, the applicant has formed a relationship with an Australian resident and the two have a child together, who was born in 2016 and is an Australian citizen. In his oral submission to the Court, the applicant has forcefully stated his wish to remain in Australia so that he can maintain a relationship with his partner and child.
The IAA decision was made on 10 December 2018. The applicant commenced the judicial review proceedings, in this Court, on 7 January 2019, within time. His application and supporting affidavit are hand written. The sole ground of the application is as follows:
“That the IAA has made a jurisdictional error in my case.”
In support of this application, as required by the Court’s Rules, the applicant has filed an affidavit in support. The substantive portions of this affidavit read as follows:
“I am the applicant in relation to the application lodged in the Federal Circuit Court filed herein this my affidavit in support of that application.
I say that I meet the requirements for the grant of a protection visa and the decision should be set aside.”
This affidavit was sworn before Mary Philippa Symonds, who is a Commissioner for taking affidavits in the Supreme Court of South Australia. Both the affidavit and application bear the applicant’s un-anonymised name and the endorsement, again in hand writing, that each was prepared by Ms Symonds. No entry is put against the pro forma endorsement for lawyers code and name of law firm on either document.
Against the printed heading, on each pro forma document, address for service in Australia has been entered a residential address in suburban Adelaide. In addition, against the heading email has been entered the applicant’s electronic address.
This application was allocated a first return date of 1 March 2019 at 9:30am. Such applications can be filed in one of two ways. Firstly, Court procedures permit the electronic filing of documents. Secondly, documents can be lodged over the counter in physical form at the Court’s registry.
If documents are lodged electronically the Court’s computer system will generate a response and electronic copy of the application, along with a page indicating the first return date, which is forwarded via email to the source of the electronic filing.
In the case of personally filed applications, the Court’s registry staff will attach a page endorsed with the first return date to two copies of the application, which are returned to the applicant concerned or his or her representative. It is the responsibility of each applicant concerned to arrange for service of the application concerned on the relevant respondent, in this case, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Filing fees apply to such applications. In this case, the Court’s records indicate that the filing fee of $665.00 was paid by the applicant, in cash, on 7 January 2019. More significantly, the application filed in these proceedings has attached to it a notice of filing and hearing indicating a first return date of 1 March 2019 at 9:30am.
In all these circumstances, I am satisfied that all reasonable steps had been taken to make the applicant aware of the return date for his application and it was his responsibility to attend on that date.
A representative appeared on behalf of the first respondent on 1 March 2019. The Court record indicates that the applicant did not appear. In these circumstances, the Registrar made the following orders:
“1. Pursuant to Rule 13.03(C) of the Federal Circuit Court Rules, the application be dismissed.
2. The Applicant pay the First Respondent’s costs fixed in the amount of $1,495.00.”
Pursuant to powers contained in Part VII of Division 4 of the Federal Circuit Court of Australia Act 1999,[4] the Court is authorised to delegate powers to its registrars. One such power is the authority to dismiss proceedings, under the Migration Act, when a party fails to appear and to award costs in respect of such non-appearance.
[4] Hereinafter referred to as “the Federal Circuit Court of Australia Act”
Pursuant to section 104(2) of the Federal Circuit Court of Australia Act, a party to proceedings in which a registrar has exercised any powers delegated to that registrar is entitled to seek a review of the resulting decision.
Pursuant to Rule 20.01(1)(b) the time stipulated for such a review of the exercise of a power by a registrar must be made within seven days. However, the Court has a discretion to extend time if it considers it is fit to do so.
In this particular case, the applicant filed his application for a review of the Registrar’s decision to dismiss his application on 28 June 2019, which was approximately four months after the relevant decision was made.
The applicant again hand wrote his application. It is not easy to follow. The gist of his application is that he seeks an order from the Court to allow him to remain in Australia. Attached to his supporting affidavit, without any explanation from the applicant himself, is a brief medical certificate dated 19 June 2019.
The medical certificate is addressed To whom it may concern and reads as follows:
“This is to certify [ABE19] has been suffering severe depression for last four months and currently he is having with suicidal thoughts too.
I commenced him on antidepressant and he is currently waiting to see a clinical psychologist.
Please do not hesitate to contact me if you have any query.”
It is necessary for me to make some observations about the medical certificate in question. Firstly, the certificate does not explain why the applicant did not attend court on 1 March 2019 and why he did not seek to remedy his non-appearance sooner. Secondly, the certificate does not provide any factual or medical basis to support an assertion that the applicant could not have taken part in the proceedings on 1 March 2019.
As such, on its face, the medical certificate is insufficient to support the reinstatement application.[5] The affidavit in support of the review application provides that the applicant has met the grounds for the grant of a protection visa. It does not provide any further evidence as to why the applicant did not attend court on the occasion when his application was dismissed or provide information as to why his review application is out of time.
[5] See MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 at [13]
An application for a review of a registrar’s decision is a hearing de novo, which is totally unfettered from the original decision concerned and requires a complete rehearing of the matter, including the assessment of any fresh evidence which was not previously before the registrar.[6]
[6] See Flint v Richard Busuttil & Co Pty Ltd [2012] FMCA 1158
As such, this Court starts afresh in respect of the issues before the registrar concerned and considers, on the basis of the evidence available to it, including any fresh evidence, whether the application should have been dismissed for want of appearance.
The applicant appeared on his own behalf on the return date of his review application. He had the assistance of an interpreter. It was clearly the case that he had limited, if any legal knowledge, particularly of the distinction between a merits review and one based on a jurisdictional error.
Four major issues arose from the applicant’s oral submissions to the Court. Firstly, he had over-looked the date. Secondly, at relevant times, he had sustained an injury to his hand, which required stitches. Thirdly, he had mental health issues. Fourthly, he had relied on his lawyer to attend to court matters on his behalf.
In regards to the first of these matters, I am satisfied that the onus was on the applicant to properly diarise and memorialise the date so that he could attend in person or advise the Court well in advance as to why he could not attend.
In regards to the second matter, the applicant has not provided any actual medical evidence to establish that he was actually injured and more significantly that the injury in question precluded him from attending at court.
I have already alluded to the third issue. The medical certificate in question does not provide sufficient medical narrative to establish that, notwithstanding the applicant’s severe depression, he was physically incapable of attending at court to request the adjournment of his application or at the very least being able to receive any deferred date for hearing.
Of equal significance, the certificate does not provide any explanation as to why the applicant was precluded from bringing his review application some three months after the dismissal of his application. In my view, the delay in question must be accounted a significant one for which no adequate explanation has been given.
Finally, there is no evidence that Ms Symonds has ever been formally on the record as the applicant’s solicitor and so responsible, in some way, for the management of his application. On its face, the application in question seems to be the work of the applicant himself, bearing as it does only a generalised and un-particularised ground of review. In addition, the application seems to bear the applicant’s own address as his address for service.
In these circumstances, I do not consider that the applicant has provided an acceptable reason for his failure to appear. That, however, is not an end to the matter. Other provisions of the Court’s rules allow for the reinstatement of a dismissed application, which inherently require some examination of the overall merits of the dismissed application.
In addition, section 17A of the Federal Circuit Court of Australia Act and Rule 13.10 of its rules permit the Federal Circuit Court to stay or dismiss a proceeding generally or in relation to any claim for relief in the proceeding if the party prosecuting the proceeding or claim for relief has no reasonable prospects of success or it is frivolous or vexations or it is an abuse of process.
Other applicable legal principles
Where an applicant does not appear at a hearing, the Court may dismiss an application [see Rule 13.03C(1)(c)]. Pursuant to the provisions of Rule 16.05(2)(a) the Court has a discretion to set aside an order made in the absence of a party.
The principles applicable to the discretionary exercise of a power to reinstate a dismissed proceeding are well settled. The exercise of such a discretion is not automatic but represents the use of a judicial power to avoid injustice to the party seeking the exercise of the discretion. In Gallo v Dawson[7] McHugh J said as follows:
“This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.”
[7] Gallo v Dawson (1990) 93 ALR 479 at 480 [2]
In MZAKQ v Minister for Immigration & Border Protection[8] Logan J, in the context of the exercise of a discretion to refuse to grant an adjournment, considered that the waste of court resources by reason of a non-appearance was not an irrelevant consideration to the exercise of such a discretion, particularly in circumstances in which an order for costs would not necessarily be palliative.
[8] MZAKQ v Minister for Immigration & Border Protection [2016] FCA 1392 at [11] – [12]
In the present case, the applicant has waited a significant period of time before seeking to re-agitate his dismissed application for judicial review. I concede that the application is one of some moment to the applicant personally, particularly given his present circumstances.
However, this Court is not authorised to conduct a merits rehearing of his application for a protection visa and the fact that he has formed significant relationships, in Australia, is not relevant to the issue of whether he is otherwise entitled to the protection of this country pursuant to the provisions of section 36 of the Act.
In CAL15 v Minister for Immigration & Border Protection[9] Mortimer J set out the applicable considerations to the exercise of the discretion to reinstate a dismissed application as follows:
“…the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.”
[9] CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 at [4]
It is also clear from CAL15 that whether an application for judicial review is arguable is not strictly analogous to any consideration of whether it is has no reasonable prospects of success. As such, the Court is not required to examine the grounds of review to the same level as would be necessary at a final hearing for judicial review.
In CAL15 Her Honour said further as follows:
“…it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.
The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is ‘arguable’, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.”[10]
[10] Ibid at [5] – [6]
For the reasons already provided, I am not persuaded that the applicant has provided an adequate explanation for his non-attendance at court, particularly given the delay arising from his non-appearance and his current application.
It is unlikely that there will be any great prejudice to the Minister if the application is reinstated other than the case will have to be prepared and a response filed. However, it is probable that any order for costs made against the applicant will not be palliative.
In general terms, if the case is reinstated at least one other applicant for judicial review may be delayed. However, it would be naïve to consider that this is likely to be a significant consideration in the greater scheme of things.
Accordingly the case turns on whether the applicant has demonstrated an arguable case for the intervention of the Court. In this context, I note that the applicant is a non-English speaker who necessarily must be at a significant level of disadvantage in presenting his case before the Court.
The applicant’s case for judicial review is inchoate and un-particularised. In his oral submission to the Court he raised matters of an idiosyncratic nature relating to his personal circumstances. As Reeves J observed in SZNXA v Minister for Immigration & Citizenship [11] formulaic or generic grounds of review do not allow a reviewing court to assess whether the errors generally asserted were actually committed by the primary decision maker and, as such, form a basis for the dismissal of the application concerned.
[11] SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21]
Nor is it for this Court to scrutinise the reasons for decision of the IAA for errors of reasoning or apparent unfairness, which the applicant himself has as yet not been able to delineate or discern other than through the expression of a general disagreement with the conclusion reached by the IAA that Australia does not owe him any duty of protection.
The IAA decision is some twenty pages in length. It recognises that the applicant provided information to the Authority that, although he remains married to a person in Sri Lanka, he has entered into a relationship with a person in Australia and has a child born in 2016, who is an Australian citizen.
It would be hard not to feel sympathy for the predicament in which he finds himself by reason of the obviously significant relationships which he has forged in this country. However, as previously indicated, these matters are not germane to whether Australia does or does not owe him a duty of protection under the Act.
The IAA did however consider whether this issue was new information for the purposes of the review provisions arising under Part 7AA of the Act, particularly in the context of the possible targeting of the applicant for being in breach of Sri Lanka’s marriage laws. It considered that it was not. The applicant has not raised any ground in respect of this issue.
In addition, he has not attempted to catalogue any error in respect of any other finding of the IAA in which it rejected other aspects of new information raised by the applicant in between the date of the ministerial delegate decision and the disposal of the review process before the IAA.
In its decision, the IAA has apparently detailed the various bases on which the applicant has sought refugee status. The IAA categorised much of the applicant’s evidence to be confused and contradictory and to be marked by embellishment.
In the absence of any ground articulated by the applicant, I am not in a position to ascertain whether any jurisdictional error attaches to these findings of the IAA, which on a prima facie assessment are considered and relate to the claim as articulated by the applicant. In particular, in his submission to the Court in his reinstatement application, the applicant does not contend that an aspect of his claim was overlooked or that he himself was subject to some degree of procedural unfairness.
Rather, as his application contends on its face, it is a submission that he is entitled to the grant of the visa in question. However, he is not able to indicate why this is so. In this context, I appreciate that the concept of jurisdictional error is a complex one to convey even to a person who is fluent in English and perhaps has a higher level of education than that which the applicant himself has received.
Be that as it may, it is not for this Court to attempt to make out some form of case for the applicant or to scrutinise the record available to it in an effort to identify some species of error, which may perhaps be capable of supporting argument at a later stage. The onus must be on the applicant to articulate, with some degree of clarity, what he asserts is the basis on which the IAA fell into jurisdictional error.
In my view, the applicant has not done so and has failed to articulate any arguable case for the intervention of this Court through a process of judicial review. For these reasons, the application for review of the Registrar’s decision and any related application for reinstatement of the dismissed application must fail and the relevant applications dismissed.
The first respondent seeks costs in an amount of $1,495.00. In all the circumstances, it is appropriate that the applicant pay costs fixed in this amount.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 27 February 2020
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