AJO22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 1085

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AJO22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1085

File number:	MLG 179 of 2022
Judgment of:	JUDGE RILEY
Date of judgment:	15 September 2022
Catchwords:	MIGRATION – Administrative Appeals Tribunal – protection visa – application to reinstate an extension of time application that had been dismissed for non-appearance.
Division:	Division 2 General Federal Law
Number of paragraphs:	17
Date of hearing:	15 September 2022
Place:	Melbourne
Advocate for the Applicant:	In person
Solicitor for the Applicant:	None
Advocate for the First Respondent:	Anthony Gardner
Solicitor for the First Respondent:	MinterEllison
Advocate for the Second Respondent:	No appearance
Solicitor for the First Respondent:	MinterEllison

ORDERS

MLG 179 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AJO22

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE RILEY
DATE OF ORDER:	15 September 2022

THE COURT ORDERS THAT:

1.The application in a proceeding filed on 16 August 2022 be dismissed.

2.The applicant pay the first respondent’s costs of the application in a proceeding fixed in the sum of $1,600.

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).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE RILEY:

1. This is an application to reinstate a proceeding. The proceeding sought to be reinstated was an application for an extension of time in which to file an application for review of a decision of the Administrative Appeals Tribunal. The application for an extension of time was dismissed on 18 July 2022 on the basis that the applicant did not appear at the hearing.

2. The applicant appeared before the court today without the benefit of legal assistance. He asked for an adjournment, which was refused. The reasons given for the refusal of the adjournment application were as follows:

   The applicant has said that he would like an adjournment of the reinstatement application because he has been unable to obtain a lawyer. He said that he had asked his family for help financially. His mother told him that by mid-next month – that is, mid-October – his mother will send him half the amount the lawyers are asking, which would be $10,000. When asked if that would be enough, the applicant said maybe later his cousins would help him.

   It seems to me, on the basis of these assertions, that there is very little reason to believe that the applicant will be able to get the amount of money that lawyers are asking to assist him. While the mother says that she will send something next month, on the applicant’s own assertions, it will not be enough, and he, essentially, is simply hoping that his cousins will help him with further money later. In these circumstances, it does not seem to me that there is a reasonable chance that the applicant will be able to get sufficient money to pay the lawyers that he seems to have had contact with in a reasonably foreseeable time. While he has a promise from his mother, he is merely hopeful and speculating in relation to further assistance from his cousins.  Consequently, the application for an adjournment is refused.

3. In relation to the reinstatement application, the applicant said that he did not receive the communication from the court telling him when the extension of time application was listed for hearing. The court sent the applicant an email on 30 May 2022 to the email address, [email protected], which was the email address the applicant gave on his extension of time application. That email contained the correct hearing details, being the hearing of the extension of time application at 2.15 pm on 18 July 2022.

4. The applicant told the court today that he did not receive that email. He said that his email address is the email address that he put in his reinstatement application – namely, [email protected]. The difference is that the email address mentioned in the extension of time application has a “1” before the “@gmail”, and the email address that the applicant says is actually his email address does not have that “1”.

5. The Minister’s solicitor noted that at CB102 there is what purports to be an email from the applicant addressed to the Department of Home Affairs from the email address with the “1” in it. I read that email out to the applicant during the hearing. He said he had, in fact, sent it. At that point, he said that he used to have three emails, but the email with the “1” in it, he no longer has, because he lost the phone that was attached to it.

6. Previously, he had told the court that the extension of time application to review the Tribunal’s decision was prepared by another detainee on the applicant’s behalf, and the applicant more or less implied that the other detainee had simply got the wrong email address. However, it now seems that the applicant conceded that he did at one time have that email address with the “1” in it, but his claim is that it was no longer current when the court sent him the notice of listing.

7. The changes in the applicant’s claims about the email address, being the change from “another detainee came up with the email address” to the applicant no longer has the phone to which the email address is attached, do cast some doubt on the believability of the applicant’s explanation for his non-appearance at the hearing of the extension of time application.

8. The Minister has conceded that there would be no prejudice to him from reinstating the proceeding.

9. The next issue is the prospects of success of the underlying application, which is the extension of time application.

10. The application was filed about 89 days out of time. The applicant said that the reason it was filed late is that he was in a detention centre, had minimal resources available to him and that he was depressed. He said he eventually got some assistance from another detainee.

11. It seems to me that the length of the delay is not particularly serious in the circumstances. The applicant’s explanation for the delay is understandable.

12. However, the very important issue is whether the application for review itself has any reasonable prospect of success.

13. The application for review has two grounds set out in it. The first is that the Tribunal failed to consider information the applicant put forward. The court asked the applicant which particular information the Tribunal had failed to consider. He said the Tribunal had failed to consider all of the information. That is clearly not true. The Tribunal’s decision appears to be careful and thorough and notes the information that the applicant did put forward. The Tribunal set out the claims made in the protection visa application, and also set out some additional matters that the applicant told the delegate. The Tribunal also set out, in summary form, the additional matters stated at the Tribunal hearing.

14. The Tribunal then appears to have assessed all of the matters that were put by the applicant. The Tribunal did not accept that the applicant’s claims were credible, for reasons which it gave. Essentially, the applicant claimed that his family had been involved in a very long-running feud. The Tribunal gave 10 reasons why it did not accept the credibility of the applicant’s claims. One of those reasons was that the applicant first came to Australia in 2017 and did not file his application for protection for three and a half years. However, there were numerous other reasons that centred on the actual claims made by the applicant that the Tribunal did not accept as having occurred.

15. The applicant said in ground 2 that the Tribunal failed to apply the law correctly. However, he was not able to elaborate on that, apart from saying that he had provided evidence, and the Tribunal refused to accept it.

16. I have not been able to see any way in which the Tribunal did not apply the law correctly, or see any way in which the Tribunal did not consider the information that was put to it. I have been unable to see any other basis upon which it could be said that there was a jurisdictional error in this case.

17. All in all, it seems to me that there is no basis upon which it might be thought that the applicant’s substantive application has reasonable prospects of success. That means that the extension of time application has very little prospect of success as well, and that in turn means that the reinstatement application should not succeed as there is no point in reinstating a proceeding or extending time if the underlying application has no reasonable prospect of success. As such, the reinstatement application will be dismissed. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Riley.

Associate:

Dated:       15 September 2022