AGS16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 16
Federal Circuit and Family Court of Australia
(DIVISION 2)
AGS16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 16
File number(s): MLG 234 of 2016 Judgment of: JUDGE LAING Date of judgment: 20 January 2023 Catchwords: MIGRATION – application for reinstatement following dismissal for non-appearance – whether there is a reasonable explanation for non-appearance – whether there is any prejudice – merits of the proposed grounds of review – whether it is in the interests of the administration of justice to reinstate the applicant’s substantive application – application dismissed. Legislation: Migration Act 1958 (Cth) ss 424A, 424AA
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05(2)(a)
Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(c)
Cases cited: BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
DFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 163
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114; (2017) 255 FCR 590
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Muzammil v Minister for Home Affairs [2019] FCCA 1564
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 7 December 2022 Solicitor for the Applicant: The applicant appeared in-person with the assistance of an interpreter Solicitor for the First Respondent: Mr C Orchard (Sparke Helmore) appeared in-person Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 234 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGS16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
20 January 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 21 September 2022 be dismissed.
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 LAING:
Before the Court is an application in a case filed on 21 September 2022 (Reinstatement Application) seeking to set aside orders made on 6 November 2019 dismissing an application for judicial review (Substantive Application) on the basis of non-appearance pursuant to r 13.03C(1)(c) of the (then) Federal Circuit Court Rules 2001 (Cth) (FCCA Rules).
The Substantive Application sought review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
background
The applicant is a citizen of India. He arrived in Australia on 4 July 2009 as the secondary applicant in respect of a vocational student visa. His wife was the primary applicant for that visa. In 2011, the applicant applied for a skilled professional visa which was declined by the Department in 2012.
On 18 February 2014, the applicant applied for a protection visa.
On 1 July 2014, the Delegate refused the application.
The applicant lodged an application for review by the Tribunal on 1 August 2014.
On 6 January 2016, the Tribunal affirmed the Delegate’s decision not to grant the applicant a protection visa.
the tribunal’s decision
The Tribunal accepted at [59] that the applicant was a citizen of India. It also accepted that the applicant was a Sikh from the state of Punjab (at [66]).
The Tribunal accepted:
(a)that the applicant married in 2008 in India and then divorced while in Australia as claimed (at [67]);
(b)that the applicant speaks, reads and writes English, Hindi and Punjabi; that he began tertiary education at the college claimed but had limited work history in India, and that his mother provided for his material needs while he was in India (at [68]);
(c)that “the applicant [was] making a claim of a real chance or a real risk of harm” that was “partially politically motivated based [on] his political opinion, imputed or otherwise” (at [69]); and
(d)that there were two rival Sikh-based organisations which vigorously contested university and college elections in Punjab (at [73]).
However, the Tribunal raised a number of concerns regarding the applicant’s claims to have been threatened and assaulted on account of (inter alia) his involvement with the All Indian Sikh Student Federation (AISSF), including that:
(a)the applicant had been unable to recall the month or year in which he claimed to have been threatened with being killed such that he was unable to finish his tertiary studies (at [71]);
(b)despite claiming that his opponents continued to search for him in 2006 or 2007, the applicant did not move away from the area. His mother established a business and the applicant appeared to have been able to participate in the traditional Sikh community, including by becoming married (at [72]);
(c)the applicant had given inconsistent evidence regarding the motivations behind his coming to Australia and had substantially delayed leaving India despite the claimed threats of harm (at [72]);
(d)the applicant’s knowledge of the AISSF was superficial and considered not to be consistent with a person claiming to have been a campus office-bearer (at [74]);
(e)whilst the applicant had undertaken to provide evidence in the form of a newspaper article supporting his claim to have been a college representative of the AISSF, this was not subsequently provided. Instead, the applicant provided what were considered to be “very limited and vague” affidavits from his mother and two other people (at [75]);
(f)despite claiming to occupy a leadership role with an organisation promoting traditional Sikh or Khalist identity, the applicant’s passport depicted the applicant’s appearance in a manner inconsistent with the symbols indicated on the organisation’s website as being integral to Sikh identity (at [76]-[77]); and
(g)the applicant delayed applying for a protection visa after arriving in Australia (at [78]).
Based upon its credibility concerns, the Tribunal did not accept that the applicant was a leader of the AISSF, a member of the AISSF, or a person with strong interest in the organisation (at [74] and [77]). The IAA therefore did not accept the applicant’s claims regarding the threats and harm he claimed to have experienced (at [79]).
In result, the Tribunal concluded that the applicant did not have any credible claim to face a relevant risk of harm in the reasonably foreseeable future. The Tribunal therefore found that the criteria for a protection visa were not met and affirmed the Delegate’s decision ([80]-[93]).
PROCEEDINGS BEFORE THIS COURT
The applicants filed the Substantive Application commencing proceedings on 9 February 2016.
The matter was listed for directions on 6 July 2016. There was no appearance for the applicant at the scheduled listing. Accordingly, the Registrar dismissed the Substantive Application under r 13.03C(1)(c) of the FCCA Rules. Following the decision in Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114; (2017) 255 FCR 590, however, it was determined that the Registrar did not have the power to dismiss under the then relevant rule.
The matter was subsequently listed for mention on 6 November 2019. The applicant did not attend that mention and Judge Riethmuller dismissed the matter for non-appearance.
On 21 September 2022, the applicant filed the Reinstatement Application. The application was originally listed for hearing on 7 November 2022. However, the matter was adjourned to allow, inter alia, evidence such as a Court Book to be filed in the matter.
Relevant principles
The power to set aside orders made in the absence of a party is now contained in r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
The principles regarding reinstatement are fairly well settled. They have been considered in a number of decisions of this Court including in BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13 at [31]-[32] (BQS17) and DFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 163 at [8].
The power is discretionary. It requires the Court to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50]-[52].
The following considerations are often considered:
(a)whether there is a reasonable explanation for non-appearance at the hearing and any delay in applying for reinstatement;
(b)any prejudice to the other party; and
(c)whether the grounds identified in the substantive application have reasonably arguable prospects of success: see BQS17 at [52] and CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4].
Explanation for non-appearance and any delay
As stated above, the Substantive Application was dismissed for non-appearance on 6 November 2019. The Reinstatement Application was filed on 21 September 2022. This, on any view, involved significant delay.
The explanation for the non-appearance was provided in the applicant’s affidavit dated 20 September 2022. The applicant contended that he did not appear because he was unaware of the date. This was in circumstances where the applicant claimed to have been ‘mislead and ignored’ by an unidentified ‘migration agent’ he claimed was supposed to have been representing him in the proceedings.
In response, the Minister relied upon an affidavit dated 30 October 2019 evidencing that his representatives and the Court had sent notifications of the listing on 6 November 2019 to the applicant at what appeared to be his personal addresses for service, including an email address bearing his name. The Minister submitted that it was the applicant’s responsibility to inform the Court of his correct contact details.
I do not regard the explanation provided by the applicant as entirely satisfactory. However, the applicant was not cross examined regarding his claims to have been misled which, if accepted, provided some explanation for both the non-appearance and the delay. Regardless, the cogency of the applicant’s explanation has not determined the outcome of the application. That is because even if I accepted the applicant’s explanation as satisfactory, I would not have been prepared to grant the relief sought by the applicant. This is having regard to what I have found in relation to the merits of the Substantive Application, considered further below.
Prejudice
The Minister does not identify any specific prejudice in this case beyond the potential inability of the applicant to meet a costs order.
It may be accepted that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17]. It may also be accepted that the absence of prejudice is neither sufficient nor capable of supporting a conclusion that an order for reinstatement should be made: Muzammil v Minister for Home Affairs [2019] FCCA 1564 at [46].
However, in the absence of any specific prejudice to the Minister being claimed, I find this consideration to be neutral in the present case.
Merits of the proposed grounds
The Substantive Application contains the following grounds of review:
1.The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
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's decision was unjust and made without taking into account the full gravity of applicants circumstances and consequences of the claim.
4.The Tribunal has failed to investigate the claim, specially the grounds of persecution in India. Therefore the Tribunal decision dated on 6 January 2016 was a judicial error.
The grounds were largely unparticularised.
In relation to ground 1, the applicant did not identify any information before the Tribunal that was capable of enlivening s 424A of the Migration Act 1958 (Cth). Nor is any such information apparent upon my own review of the materials. In the absence of any such information being identified, the ground does not disclose any arguable basis for finding jurisdictional error.
In relation to ground 2, the applicant did not explain how or why the Tribunal was said to have lacked jurisdiction, beyond the matters raised by the other grounds. The Tribunal’s reasoning, summarised at [8] to [12] above, appears to have been reasonably open to the Tribunal. The applicant has not identified any reasonably arguable basis for finding that it was not, and none is apparent on the materials before the Court.
In relation to ground 3, the applicant did not explain why he considered that the Tribunal’s decision was “unjust”, nor how this was capable of demonstrating any material, legally recognisable error. Nor did he identify any claim or circumstance that was relevantly before the Tribunal, that the Tribunal was obliged yet failed to consider. The applicant’s claims to face harm were largely based upon his involvement with the AISSF. The Tribunal did not accept those claims, on account of credibility concerns summarised at [10] above. In coming to this conclusion, the Tribunal appears to have considered the applicant’s evidence in some detail (at [19]-[58]), which it then assessed against the criteria for the visa (at [59]-[92]). The applicant has not identified any arguable basis for finding that this assessment was affected by any legally recognisable error.
In relation to ground 4, the applicant did not explain what investigation he contended that the Tribunal was obliged to make in relation to his claims. There is no general obligation upon the Tribunal to make inquiries. As I explained at the hearing, it has been recognised that “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances” justify a finding of error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI) at [25]. However, the applicant has not identified any “obvious inquiry” he contends that the Tribunal ought to have made, about any “critical fact”. Nor has he explained how failure to undertake such investigations or inquiries was otherwise capable of meeting the high threshold considered in SZIAI. No reasonably arguable ground of review has been identified on this basis.
The applicant did not elaborate upon the pleaded grounds when given the opportunity to do so at the hearing of the Reinstatement Application. I accept the Minister’s submission that no reasonably arguable ground of review has been identified in the Substantive Application. Nor is any reasonably arguable ground of review identifiable on my own review of the materials, which I have undertaken conscious of the applicant’s lack of representation.
As Mortimer J observed in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4], it “is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case”.
I accept the Minister’s submission that this consideration weighs heavily against reinstatement.
conclusion
For the above reasons, I am not persuaded that it is in the interests of the administration of justice to reinstate the applicant’s Substantive Application. It follows that the Reinstatement Application will be dismissed.
I will hear from the parties in relation to costs.
39 I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.
Associate:
Dated: 20 January 2023
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