ACO16 v Minister for Immigration and Anor (No.2)

[2017] FCCA 2347

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACO16 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 2347

Catchwords:
MIGRATION – Administrative Appeals Tribunal – reinstatement application – no satisfactory explanation for the applicant’s failure to appear at the hearing – the applicant made a deliberate decision to not appear – merits of the application are not sufficient to warrant setting aside the orders made on 6 September 2017 for failing to appear – the application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a)

Migration Act 1958 (Cth), s.476

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: ACO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 63 of 2016

Judgment of: Judge Street

Hearing date: 26 September 2017

Date of Last Submission: 26 September 2017

Delivered at: Sydney

Delivered on: 26 September 2017

REPRESENTATION

The Applicant appeared via telephone.

Solicitors for the Respondents: Mr L Dennis
Minter Ellison

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $1,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 63 of 2016

ACO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 December 2015, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of India, and his claims were assessed against that country. The applicant first arrived in Australia on 23 July 2009 and made an application for protection on 24 February 2014. On 7 October 2014, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Migration Act.

3. On 10 December 2015, the Tribunal found the applicant failed to meet the criteria for the grant of a protection visa and made adverse credibility findings in relation to the applicant’s claims. The applicant claimed to fear harm at the hands of supporters of the Akali Dal on account of his membership and support of the Congress Party. The applicant claimed he was the victim of threats, violence and a kidnapping. The applicant alleged the treatment continued when he returned to visit his sick father in 2011, and the applicant also claimed to fear harm at the hands of his ex-wife’s family after their divorce.

Before this Court

Hearing on 6 September 2017

1. This Court made orders fixing the matter for hearing on 6 September 2017. That was as a result of orders made by the Court on 17 May 2017, at which the applicant was present. On that occasion, the Court reminded the applicant of the need for him to appear on that date, or the matter would be dealt with in his absence. The applicant failed to appear on 6 September 2017, and the Court dismissed the application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 “the Rules”).

Applicant in a case

1. The applicant subsequently lodged an application in a case to set aside the decision and has put on an affidavit in support alleging that he did not have funds to be able to travel to Sydney and alleging that because he sent a communication to the Court requesting a telephone hearing, he did not attend. On the evidence before the Court, the applicant made a deliberate decision not to attend on 6 September 2017.

Hearing on 26 September 2017

1. At the commencement of the hearing, the Court explained that this was an application in a case to set aside the orders made on 6 September 2017. The Court explained that there were two considerations in that regard, the first being whether the applicant had a satisfactory explanation for the failure to appear and secondly the merits of the case.

2. The Court explained in relation to the merits that the Court was considering whether the applicant had a reasonable argument that the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether there is a reasonable argument that the Tribunal’s decision was unlawful and unfair.

3. The Court explained that, if satisfied the applicant had a satisfactory explanation for the failure to appear and a reasonable argument that the Tribunal’s decision was affected by relevant legal error, the orders would be set aside and the matter set down for hearing at a later occasion. The Court explained that if not satisfied the applicant had a reasonable explanation for the failure to appear and a reasonable argument that the Tribunal’s decision was affected by relevant legal error, the application in a case would be dismissed with costs.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, the hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the case, as explained by the Court. 

Whether there is a satisfactory explanation for the applicant’s failure to appear

1. From the bar table, the applicant sought to explain the communications that he made prior to 6 September 2017, in which he sought a telephone hearing. The applicant was well aware of the fact that no order had been made permitting him to attend by telephone. On the face of the material before the Court, the Court finds the applicant made a deliberate decision not to attend on 6 September 2017.

2. In those circumstances, there is no proper basis for making an order under r.16.05(2)(a) of the Rules. That rule is intended to provide an opportunity consistent with the requirements of procedural fairness for a party to set aside orders where by circumstances that are meritorious, the applicant failed to appear. The rule is not intended to permit an applicant to make a further application to set aside orders in circumstances where there is a deliberate decision by the applicant not to appear before the Court.

3. The applicant was informed by the Court as to its concern of the applicant’s deliberate failure to appear and the applicant repeated his explanation as to why he was sending communications to the Court about appearing by telephone. Those communications reflect the applicant’s awareness of the hearing date and a deliberate decision of the applicant, even though he was aware no order had been made permitting him to appear by telephone, not to appear.

4. The same thing occurred on today’s date, albeit that the Court at the request of the first respondent took steps to contact the applicant by telephone, for the purpose of dealing with the application in a case. Nothing said by the applicant from the bar table identified any satisfactory explanation from for the applicant’s failure to appear at the hearing on 6 September 2017. On that ground alone, the application in a case should be dismissed. 

Consideration of the merits

1. However, in relation to the merits of the application, I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. This is a case where there were adverse credibility findings made against the applicant. Nothing in the three grounds identified in the application identify any reasonably arguable case of jurisdictional error.

2. The merits of the application are not sufficient to warrant the setting aside of the order made on 6 September 2017, even if the applicant had provided a satisfactory explanation as to the failure to appear. The Court is satisfied, in relation to the merits, that there would be no utility in setting aside the order made on 6 September 2017.

Adjournment raised by the applicant from the bar table

1. The applicant, when given the opportunity to put submissions in reply requested that the proceedings be further adjourned, so that the applicant could appear in Sydney and adduce further material. The applicant has already had orders providing the applicant with an opportunity to put on material which the applicant has failed to comply with. The applicant was given two opportunities to appear in Sydney, which the applicant has failed to comply with.

2. The request for an adjournment was opposed by the first respondent.  There was nothing said by the applicant to identify any utility in the granting of an adjournment. The Court is not satisfied an adjournment is not warranted in the interests of the administration of justice. For these reasons, the adjournment is refused.

Conclusion

1. In the circumstances, the Court is not satisfied that the applicant has any proper explanation for the failure to appear on 6 September 2017. The merits of the application are sufficiently lacking so the Court is satisfied there is no utility in the granting of the relief sought in the application in a case. 

2. Accordingly, the application in a case is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  6 October 2017