AJC15 v Minister for Immigration

[2015] FCCA 3591

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJC15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3591

Catchwords:
MIGRATION – Application to reinstate application dismissed for want of appearance.

Legislation:

Migration Act 1958, ss.36(2)(a), 36(2)(aa)

MZYEZ v Minister for Immigration [2010] FCA 530

Applicant: AJC15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 286 of 2015

Judgment of: Judge Jarrett

Hearing date: 7 December 2015

Date of Last Submission: 7 December 2015

Delivered at: Brisbane

Delivered on: 7 December 2015

REPRESENTATION

Solicitors for the Applicant: Ronald Gordon (Solicitor)

Counsel for the First Respondent: Mr S.T. Richardson

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance.

ORDERS

1. The application filed on 19 October 2015 be dismissed.

2. The applicant pay the respondent’s costs of and incidental to that application fixed in the sum of $3733.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 286 of 2015

AJC15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application for an order that sets aside orders made by me on 18 May, 2015 by which I dismissed an application for judicial review that the applicant filed in this Court on 2 April, 2015.  By that application he challenges a decision of a refugee review tribunal to refuse to grant him a protection (Class XA) visa. 

2. The application needs to be determined according to the principles that govern the setting aside of orders that have been regularly made by the Court.  Those principles are well-known.  There are generally three matters that exercise a court’s attention in such applications.

3. The first is whether there was a reasonable explanation for the party’s absence from the hearing at which the proceeding was dismissed or struck out, the existence of any prejudice to the respondent, and whether the applicant has a reasonably arguable case on the substantive application.  To that list might be added another matter:  and that is the delay between the dismissal, or striking out of the proceedings and the application to reinstate.  There seems to be no cavilling with those propositions from the applicant, but if authority is needed the first respondent points me to MZYEZ v Minister for Immigration [2010] FCA 530 as an example which sets out the relevant principles.

4. As to the question of a reasonable explanation for his failure to appear, the applicant swears that he received notice of the refugee review tribunal’s decision on 6 March, 2015.  He had help in the preparation of his application and his affidavit to commence the proceedings in this Court, although he does not say from whom.  On 2 April, he attended the Brisbane registry of this Court to file his application and his supporting affidavit.  He took with him three sets of the court documents he wished to file, but the registry only took one and returned the other two to him without stamping them.  He says that he was told that they only needed one.

5. He was asked for an email address.  He gave it to them, and he says, “They, or I inserted that email address onto the copy of the application that the registry took”.  He was told by the person who was attending to him that they would issue the application and affidavit in support and email to him an issued copy of each of them.  The registry also told him that they would send a copy of the issued documents to the respondents.  Because the respondents appeared on the first court date I infer that the registry sent a copy of the issued documents to the respondents. 

6. The applicant says that he left the registry without being given any documents and on 2 April he did not receive any email from the registry attaching any issued copy of his application or affidavit in support.  He swears that he never received by email or post any letter from the respondents or their lawyers between 2 April, 2015 and 18 May, 2015.  He says that a friend of his named Jane Chapman made some inquiries with the court at his instigation.  He was becoming anxious that he had not heard from the Court.  So on or about 21 May, 2015 Ms Chapman made some inquiries with the registry.  The applicant swears that Ms Chapman informed him that “the Court” had informed her that his application was filed on 2 April and a copy of the application and affidavit was emailed to him on that date. 

7. On 18 May, 2015 the application was dismissed because he did not attend the hearing. 

8. The applicant swears that after he was told that his application had been dismissed, “I did not know what to do”.  He says that some other refugee applicants advised him to write to the first respondent seeking help for him to seek refuge in Australia.  That is curious advice given that at least by that point the applicant had made an application for a protection visa and had received various documents along the way, including notification of the relevant refugee review tribunal decision and the notices that are habitually attached to those decisions.  He had also had in the past some contact with government appointed lawyers for the purposes of applying for protection.  Nonetheless, he says that he only became aware on 19 October, 2015 that he could make an application for a rehearing “of my application/case and/or appeal the dismissal of my application/case”.  He says that he only became aware of that upon being advised by his current lawyer, although he does not say how it was that he came to be in contact with his current lawyer.

9. The applicant has filed a second affidavit on 2 December, 2015.  In that affidavit he swears that when he filed his application he was living at an address in Rockhampton.  He points out that his address recorded in his driver’s licence is the same as the address that he gave to the Department, but it was not the same as the address that was contained in a letter purportedly sent by the first respondent’s solicitors to him.  The address is also wrongly stated in his application and affidavit. 

10. There is, apart from the evidence to which I have already referred, no other evidence which explains the failure to appear or the delay between the striking out of the proceedings and the application for reinstatement.  The evidence to which I have referred is the sum total of it. 

11. The applicant’s evidence satisfied me that he has a reasonable explanation for his failure to appear on the first court date.  He says that he was not notified of the relevant court date.  Leaving aside the letter sent by the solicitors for the first respondent, there is no evidence before me that would suggest that an email was sent by the registry of the Court to him containing the relevant documents.  The correspondence sent by the first respondent to him was addressed incorrectly through no fault of the first respondent or its solicitors.

12. There is, however, no proper explanation for the delay between the dismissal of his proceedings in May and the commencement of this application in October. 

13. The Minister quite properly concedes that there is no prejudice to the Minister by acceding to the applicant’s application; at least no prejudice that might not be cured by an order for costs. 

14. That brings me to the fourth of the relevant considerations.  And that is whether there is a reasonably arguable case, or the applicant has reasonably arguable prospects of success on his substantive application.

15. In that respect, the starting point must be the application for review that he has filed.  His application said this under the heading “grounds of application”:

    (1) In determining that the applicant cannot be recognised as a person to whom Australia owed protection obligations the second respondent:

    (a) failed to observe the requirements of procedural fairness;

    (b) made an error of law;

    (c) applied the wrong test;  or

    (d) failed to take into account relevant considerations which she was bound to take into account.

    Particulars.  The detailed particulars will be provided in an amended application as the application is being filed to preserve the applicant’s rights to review.

    It was said by counsel for the applicant that had the applicant appeared on the first court date it was likely that an order would have been made that would permit the applicant to file an amended application.  I would venture to go further than that and say it is certain that such an order would be made because the application in its current form is entirely defective. 

16. As the written submissions for the first respondent point out, the broad and unparticularised grounds of review set out in the application are insufficient to properly engage the jurisdiction of this Court.  Grounds of review need to be particular.  They need to have some content, and the recitation of formulae grounds is of no assistance.  The applicant has filed three affidavits in these proceedings:  the one that accompanied his application and two others.  None of them address the merits of his application for review.  The submissions that were addressed to this aspect of the matter this morning were made only after prompting from me, and then only by reference to matters that are not sworn to.

17. The written submissions for the first respondent attempt in a fair and even-handed way to analyse the tribunal’s decision for the purposes of determining whether the applicant might well have proper grounds of review.  It is of course a difficult thing to do when one is on the opposite side of the record to consider the applicant’s case and assist to have determined whether there is error in the tribunal’s decision.  The respondent’s submissions suggest that there is no error in the tribunal’s decision.

18. The tribunal’s reasons are attached to the applicant’s first affidavit.  Those reasons cover the following ground:  first, the tribunal sets out the claims made by the applicant in his entry interview that was conducted when he first entered Australia.  His claim seems to be that he and his family were the subject of harassment by the police because he was Tamil.  His written statement provided in support of his application suggests that he fled Sri Lanka illegally in June, 2012 because of his Tamil race and the political opinion that would be imputed to him by reason of that.  He argued that it would be thought that he was part of, or affiliated with, or involved in, the Liberation Tigers of Tamil Eelam.

19. He claimed that his family were displaced in 1990.  When he was very young they moved from their home.  Much later in 2004, his brother-in-law moved his residence.  He claimed that in 2006 there were round-ups of young Tamil males who were not of the local village.  He says that there were suspicions that they were involved in the LTTE and those people that were rounded up were arrested and interrogated.  He, however, did not have that problem because he was from the local village.

20. He told the tribunal in his statement of claims that some 50 or 60 armed men had come to his village to do the round-up.  He said subsequently he and his brother-in-law were taken to a temple and interrogated.  He says that he was beaten while he was being interrogated.  He was detained for approximately an hour and released.  His brother-in-law was detained for a month.  His brother-in-law was visited by the applicant’s family and they were threatened themselves. 

21. Soon after, his brother-in-law fled to Saudi Arabia.  His uncle remained in the area in which they lived, but his family fled.  His uncle was killed in a missile attack, he says.  There were some other members of his family who were killed by missile attacks. 

22. The applicant was interviewed by a delegate when he first applied for protection.  The tribunal sets out the claims made by the applicant to the delegate.  The applicant was represented before the tribunal, and his legal representatives made written submissions to the tribunal.  The tribunal in its reasons records the substance of those submissions.  The tribunal could not be satisfied that the applicant should be granted a protection visa, and for that purpose convened a hearing so that the tribunal could take evidence from the applicant and the applicant could make submissions to it.  The applicant was represented at that hearing.

23. The tribunal questioned the applicant at the hearing, and the applicant provided further material to the applicant.  After the hearing the tribunal delivered reasons for its decision.  It concluded that whilst it accepted that the applicant was a national of Sri Lanka it did not accept that he would be perceived as a suspected member of the LTTE, or that his family would be suspected of that.  The tribunal accepted that there were various round-ups of people in various areas.  That there had been deaths and injury caused during the Sri Lankan civil war.

24. However, the tribunal after carefully analysing the evidence both in respect of the applicant and his brother-in-law determined that the applicant was unlikely to be perceived to have LTTE connections.  The tribunal thought that there was nothing in the circumstances associated with a change in government in Sri Lanka that would connect him to the LTTE, or a suspicion of being involved with the LTTE.  The tribunal considered the inferences that might be drawn from the applicant’s ethnicity as a Tamil and his Hindu religion, but determined that there would be no persecution of him on those grounds. 

25. The tribunal did not accept and was not satisfied that the applicant otherwise met the criteria for refugee status. The tribunal determined also that the applicant did not meet the complementary protection criteria set out in section 36(2)(aa) of the Migration Act1958. The tribunal considered the matters raised by the applicant in that regard – his status as a failed asylum seeker, his status as a person who had illegally departed Sri Lanka – and determined that nonetheless he was not owed obligations either under the refugee criteria – section 36(2)(a) of the Act – or the complementary protection criteria – section 36(2)(aa) of the Act – and accordingly the tribunal determined the application against him.

26. Having regard to the tribunal’s reasons for decision, it is difficult to see how it might be said that the tribunal failed to observe the requirements of procedural fairness.  The tribunal invited the applicant to attend a hearing.  He attended it.  He gave evidence.  He made submissions both orally and in writing. 

27. There is nothing to suggest that the tribunal made an error of law.  It referred to the relevant sections of the Act.  There was nothing that suggests, or is even suggestive of the tribunal applying the wrong test.

28. It was alive to the matters of which it needed to be satisfied for it to determine that the applicant was entitled to a visa.  It determined those matters – some of the matters of fact – against the applicant.  As counsel for the first respondent suggested, some of the matters determined against the applicant turned on questions of his credit.  Findings of credit are findings of fact par excellence.  They are matters for the tribunal, not matters for this Court.

29. Finally, it is not suggested in any of the applicant’s evidence, nor in argument that there was any particular relevant consideration which the tribunal was bound to take into account and which it did not.  It is the case, it seems to me, that on an application such as the present it is necessary to come to some conclusion about the prospects of the underlying application that an applicant for reinstatement wishes to prosecute.  It is incumbent on an applicant to demonstrate that there are some prospects.

30. Here, the applicant has not done that.  He has filed three affidavits, but none of them address the question of the prospects of successfully reviewing the tribunal’s decision.

31. I am not satisfied that the underlying application which the applicant wishes to reinstate has any reasonable prospects of success.  In those circumstances, and notwithstanding the conclusion that I have come to that there was a reasonable explanation for his failure to appear, nonetheless the application to reinstate should be dismissed. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:

Date:  29 February 2016