ALO17 v Minister for Immigration

[2018] FCCA 900

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 900

Catchwords:
MIGRATION – Application for reinstatement under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) – failure by applicant to attend Court without notice on more than one occasion – substantive application has no reasonably arguable prospect of success – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), rr.13.03, 16.05

Applicant: ALO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 319 of 2017

Judgment of: Judge Smith

Hearing date: 23 March 2018

Date of Last Submission: 23 March 2018

Delivered at: Sydney

Delivered on: 23 March 2018

REPRESENTATION

The applicant appeared in person via telephone link

Solicitors for the Respondents: Mr J Hutton, Australian Government Solicitor

ORDERS

1. The application for reinstatement be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 319 of 2017

ALO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a national of India who arrived in Australia in 2008 as a student.  His student visa expired on 9 September 2010.  On 27 November 2015, he applied for a protection visa.  The applicant claimed to fear harm on the basis of his relationship with his fiancé in India.  He said that her family opposed their relationship, and harassed and threatened to hurt the applicant and his family. 

2. That application was refused by a delegate of the Minister for Immigration and the applicant applied to the Administrative Appeals Tribunal for a review.  The applicant was invited to attend a hearing conducted by the Tribunal but he did not appear at that hearing.  On 9 January 2017 the Tribunal made the decision to affirm the delegate’s decision.  The Tribunal was not satisfied of the applicant’s claims essentially because of the limited material that had been placed before it by the applicant.  The limited nature of the material was not assisted by the fact that the applicant had not attended the hearing.

3. On 3 February 2017 the applicant lodged in the Sydney registry of this Court an application for review of the Tribunal’s decision. By orders made on 6 April 2017 by the Registrar, the matter was set down for callover before me on 14 September 2017. The applicant did not attend at that time and the matter was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

4. On 6 October 2017, the applicant made an application for an order pursuant to r.16.05 of the Rules seeking to set aside the order dismissing his application.

5. That application was based upon the claim that he was sick on the day of the callover. That application was set down for hearing in the afternoon of 14 November 2017. The applicant did not appear at that hearing and that application, too, was dismissed pursuant to r.13.03C(1)(c) of the Rules.

6. On 6 December 2017, the applicant lodged another application under r.16.05 of the Rules. In support of that application he said that he had missed his flight from Brisbane on the last occasion. That application has been set down for hearing today at 11.30am. Once again, the applicant has not attended in person; however the Court has proceeded with the hearing by having first, waited for the applicant’s flight to arrive in Sydney and then by contacting him on his mobile telephone number.

7. In that way, the applicant has made submissions in support of his application for reinstatement.  He explained that on the last occasion he missed his flight and that the matter has been listed in Sydney even though he now lives in Brisbane.  The Court asked him what error he said that the Tribunal had fallen into and he reiterated that he did not wish to make submissions about that.

8. The principles to be applied in an application such as this require the Court to consider the relevant circumstances, including the following:  firstly, whether there was a reasonable excuse for the applicant’s absence from a hearing in which the proceeding was dismissed; secondly, the existence and nature of any prejudice which might flow to the respondent; and thirdly, whether the applicant has a reasonable arguable prospect of success on the substantive application.

9. Given the history of this case, it is necessary, in my view, for the applicant to establish not only a reasonable basis for his failure to appear on the last occasion, but also on the occasion before that.  In my view he has not.  First, there is no satisfactory evidence that the applicant was at all sick on the callover on 14 September 2017.  Secondly, there is nothing to corroborate the applicant’s claim that he missed his plane on 14 November 2017.

10. Indeed, the applicant has not given any corroborative evidence that he had a ticket for a plane on that day.  Even if he did, I do not find that it is satisfactory that an applicant simply misses his plane without notice to either the respondent or the Court.  That said, even if there were a reasonable basis for the applicant to fail to appear on both the previous occasions, I am not satisfied that there is a reasonable arguable prospect of success on the substantive application.

11. As I have noted, the Tribunal rejected the applicant’s claims upon the basis of the lack of evidence before it.  The applicant was on notice that he had been entitled to come to the Tribunal to give further evidence but he failed to avail himself of that too. 

12. I have considered all of the grounds in the application itself, as well as in the application for reinstatement, and I set those out below (without alteration):

    1.THE TRIBUNAL MADE JURISDICTION ERROR.

    2.I WAS SICK ON THE DAY OF HEARING SO I COULDN’T ATTEND THIS COURT.

    3.AAT MADE JURISDICTIONAL ERROR.. AAT DID FOLLOW THE RULE.

    4.S 36(2)(AA) WAS STASIFIED BY APPLICANT BUT AAT DID NOT BELIEVE OR NOT FOLLOW THE RULES.

    5.NATURE OF JUSTICE WAS NOT GIVEN TO THE COURT.

    THE APPLICANT BE ALLOWED TO REMAIN IN AUSTRALIA UNTILL THE DECESION OF THE FEDERAL CIRCUIT COURT.

    …

    7.APPLICANT ATTACHED HIS MEDICAL CERTIFICATE.

    8.I REQUEST TO COURT RESTORE MY CASE AND GIVE ME FAIR CHANCE . BECAUSE MY CASE IS UNIQUE . IF I AM RETURN I HAD SERIOUS PROBLEM.

    It suffices to say, for present purposes, that nothing in these grounds raises any possible jurisdictional error. 

13. Having had regard to the material in the court book, including particularly the Tribunal’s decision, I can see no arguable jurisdictional error. For all of those reasons I would dismiss the application for reinstatement. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       13 April 2018