Aol17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 776

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 776

File number(s):

MLG 274 of 2017

Judgment of:

JUDGE A KELLY

Date of judgment:

22 April 2021

Catchwords:

MIGRATION – Protection (Class XA) (subclass 866) – review of the Administrative Appeals Tribunal decision – Tribunal finding it lacked jurisdiction – where application for judicial review must show jurisdictional error – where applicant is responsible to specify particulars of claim and to provide sufficient evidence to establish such claims – where applicant sought adjournment unsupported by evidence – where applicant had failed to file any amended application, further affidavit or submissions in support of application – application for adjournment refused – where grounds for judicial review lacked merit – application dismissed

Legislation:

 Migration Act 1958 (Cth), ss 5AAA, 36, 65, 363, 425, 425A, 426A, 441A, 441C
Migration Regulations 1994 (Cth), reg 4.35D      

Cases cited:

Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 163

Kopalapillia v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

MIAC v Xijuan Li and Anor [2013] HCA 18

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

MZWDG v Minister for Immigration Multicultural and Indigenous Affairs [2006] FCA 497

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 (2004] FCAFC 328

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (2002] FCA 668

Number of paragraphs:

42

Date of hearing:

14 April 2021

Place:

Melbourne

Counsel for the Applicant:

the applicant in person

Counsel for the First Respondent:

Mr Helsdon

ORDERS

MLG 274 of 2017

BETWEEN:

AOL17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE A KELLY
DATE OF ORDER:	22 APRIL 2021

THE COURT ORDERS THAT:

1.Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.

2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3.The application filed on 13 February 2017 be dismissed.

4.The applicant pay the costs of the first respondent fixed in the sum of $5,000.

REASONS FOR JUDGMENT

JUDGE A KELLY

Introduction

1. By originating application filed on 13 February 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 January 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Protection (Class XA) (subclass 866) (visa) pursuant to s 65 of the Migration Act 1958 (Act).

   Background

2. In the circumstances described below, the background and other matters have been drawn from the Minister’s submissions together with my examination of the materials in the court book and those which have been filed in this court.

3. The applicant, a male citizen of India now aged 37 years, first came to Australia on
   12 June 2008 as the holder of a Student (Class TU) (Subclass 573) visa.  It appears that the applicant had originally come to Australia with his wife who was also engaged in study and that the marriage has since broken down.

4. On 8 December 2010, the applicant filed an application for a Temporary (Skilled) (Subclass 485) visa, however this was refused by a delegate of the Minister.  The decision to do so was affirmed by the then Migration Review Tribunal on 8 November 2013. The applicant sought review of this decision by the Federal Circuit Court which dismissed the application by order made on 13 August 2014.  Despite his subsequent appeal to the Federal Court, this too was dismissed for non-appearance by order made on 28 November 2014.

5. The applicant applied for Ministerial Intervention, however on 30 March 2016 the application was not referred for consideration.

6. On 12 April 2016, the applicant lodged an application for the visa. The applicant’s claims as articulated in the visa application were that the applicant claimed to fear harm in India on account of a land dispute with family members who had political links to the government.

7. On 24 June 2016, a delegate of the first respondent refused to grant the applicant the visa. The delegate noted the applicant’s claims that he had left India and come to Australia with his wife and that the parties marriage had broken down. 

8. The delegate identified the claim that the applicant had a land dispute with family members who had political links in the government and that he had travelled to India on three occasions in attempts to resolve the matter but had failed.  The applicant claimed that if he returned to India he may be injured or killed, that there was no point in making complaints to police and that he was without resources to move to another country where, in any event, he would be found.  The delegate found that the applicant provided vague information with minimal detail and no evidence to support his claims.  In this respect, the delegate observed that although the applicant had “confirmed that he came to Australia as the dependent of his wife’s student visa and also claims that he had a land dispute, the applicant returned to India on three occasions and did not apply for protection until almost 8 years after his first arrival in Australia.”

9. The delegate was not satisfied that: there was a real chance the applicant may be persecuted for any relevant reason; the applicant met the criteria necessary to qualify as a ‘refugee’, or; the applicant was entitled to complementary protection for any reason.

10. On 13 July 2016, the applicant lodged an application for merits review by the Tribunal.

11. On 2 December 2016, the Tribunal invited the applicant to attend a hearing scheduled for
    10 January 2017 where he could present arguments and evidence in relation to his application.  By that invitation, the applicant was informed that if he did not attend the scheduled hearing, a decision could be made in his absence.  The applicant was also informed that if the application was dismissed in his absence he could, within a stipulated period, seek reinstatement of the application and further, that if the Tribunal confirmed the decision to dismiss the application, the decision the subject of the application was taken to be affirmed.

12. On 3 January and 9 January 2017, SMS messages were sent to the applicant reminding him of the scheduled hearing.  No response to either such message was received.

13. The applicant did not appear at the hearing on 10 January 2017 and did not communicate with the Tribunal to explain his non-attendance.  Thereafter, the applicant did not engage in the review process before the Tribunal any further.  In those circumstances, the Tribunal decided to proceed to make a decision on the review on the evidence then available to it.

14. On 20 January 2017, the Tribunal made a decision affirming the decision not to grant the applicant a protection visa and provided a statement of its reasons for doing so.  I have considered those reasons which explain why the Tribunal found the applicant’s claims to be vague and lacking in detail and recognised that it was the responsibility of a visa applicant to specify all particulars of a claim in respect of which protection was sought: Act, s 5AAA.

15. The Tribunal concluded that the applicant’s claims were not made out and affirmed the delegate’s decision.

    Procedural History

16. On 13 February 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review.  The application indicated that no interpreter was required and the affidavit was affirmed without the use of an interpreter.

17. On 1 March 2017, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by jurisdictional error.

18. On 16 August 2017, orders were made, by consent, listing the matter for final hearing.  

19. On that date, orders were made affording the applicant opportunities to file any amended application, affidavits and submissions.  None of those opportunities were taken.

20. On 29 March 2021, a submission was filed on behalf of the Minister.

21. At the hearing, I was informed that on 7 April 2021, the applicant had transmitted an email to the court seeking an adjournment.  In turn, this email was on-sent to the Minister’s solicitors.  It was not tendered in evidence.

22. At the hearing on 14 April 2021, the applicant appeared by telephone.  When asked whether he wished to appear by video link he stated that he wished to participate by telephone.

23. The applicant made, in effect, an oral application for an adjournment, doing so in the absence of any evidence in support of it.  He submitted he wanted more time to prepare his case and asserted that he had been impeded by the Covid-19 pandemic from doing so.  He then said that he had difficulty in understanding English.  The application for an adjournment was refused and the applicant was told on several occasions that the hearing on that date represented his opportunity to make submissions as to why he should be granted the relief being sought.

24. The applicant made no substantive submissions and the hearing was somewhat brief.

    Adjournment

25. A party is not entitled to an adjournment as of right and the circumstances of a party not represented by a lawyer is not, of itself, necessarily a reason to adjourn a proceeding.

26. Consideration of the application for an adjournment included recognition of the applicant’s visa history including his failure to pursue or participate in the application for merits review he initiated before the Tribunal.

27. As noted, the originating application, which had been completed (either in type or in hand) by the applicant indicated that the applicant did not require the assistance of an interpreter.  The only affidavit filed in the proceeding, which was made on 13 February 2017, had been affirmed by the applicant without the assistance of an interpreter.

28. The present proceeding has been on foot since 13 February 2017. 

29. Further, the applicant consented to the proceeding being listed for a final hearing.

30. As noted above, the applicant has failed to file any amended application, further affidavit or any submissions in support of his application (for an adjournment or otherwise).

31. Parties are entitled to an opportunity to present their evidence and make submissions in support of the relief being sought, however, it is largely a matter of their choice whether such opportunity be taken.  The suggestion that the applicant in this case has not had a sufficient opportunity to prepare for the final hearing of this proceeding is without substance.

32. Finally, I do not ignore that the scarce resources of this court had been dedicated to providing the applicant to present his submissions and evidence at a final hearing.  Quite apart from any question of whether the applicant has taken that opportunity, his failure to do so has deprived another litigant of an opportunity for an earlier hearing.  To grant the adjournment would also deprive another litigant of a similar opportunity.

    Consideration

33. By his application, the applicant advanced two grounds of review which read:

    That decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal breached its obligations pursuant to section 36(2)(aa) of the Migration Act 1958 by not considering the complementary protection ground and failing to put the Applicant on notice of the issues dispositive to its decision.

    Particulars

    a.        Real risk of significant harm was not considered

    b.Tribunal simply followed and adopted the delegate's decision without exploring the applicant's claims

    c.The Tribunal adopted an unduly harsh approach in finding the applicant's claims are vague and lacking in detail.

    d.The Tribunal did not give consideration to each separate aspect of the claimed fear of persecution.

    e.Tribunal failed to consider the applicants claim that he may be killed if he returns to India

    f.The Tribunal failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertain, see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [25] per French CJ, G Crennan, Kiefel and Bell JJ).

    The Tribunal failed to accord to the Applicant procedural fairness and natural justice.

    Particulars

    a.The Tribunals decision to proceed and make a decision without hearing was unreasonable.

    b.The decision maker has failed to give an opportunity to the applicants to be heard and to address the issues and grounds upon which the visa was refused.

    c.The Tribunal's exercise of the decision under s363 (l)(b) of the Migration Act 1958 (the Act) was unreasonable applying the case of MIAC v Xijuan Li and Anor [2013] HCA 18, SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (2002] FCA 668 at Ll.fil per von Doussa J and see NADH of2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; (2004] FCAFC 328 at 11.LlJ per Allsop J.

    Resolution

34. Contrary to the matters complained of in the application, the Tribunal correctly recognised that by operation of s 5AAA of the Act, it was the applicant’s responsibility to specify the particulars of his claim and to provide sufficient evidence to establish such claims.

35. I agree in the Minister’s submission that it is not the responsibility of the Minister to specify, or assist in specifying, any particulars of such claims.  Nor is it a responsibility of the Tribunal to do so including in establishing, or assisting in establishing, such claims: Act, s 5AAA(4).

36. In these respects, the Tribunal’s reasoning was consonant with established principle: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, [20]; Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 163, 152; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1, [55]–[57]; MZWDG v Minister for Immigration Multicultural and Indigenous Affairs [2006] FCA 497, [38].

37. Moreover, the Tribunal’s conclusion that the applicant’s claims were vague and lacking in detail was clearly open in all of the circumstances: Kopalapillia v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547.

38. Ground 1 is not made out.

39. Ground 2 is equally lacking in substance. The Tribunal properly notified the applicant of the hearing date in compliance with the relevant legislative requirements: see ss 425, 425A, and 441A(5) of the Act.  The Tribunal’s hearing invitation, sent to the applicant by email on 2 December 2016, was sent to the email address provided by the applicant in connection with application for merits review.  The applicant was deemed to have received the hearing invitation at the end of the day on 2 December 2016: Act, s 441C(5).

40. By inviting the applicant to a hearing on 10 January 2017, at least 14 days after the applicant was deemed to have received the hearing invitation, the Tribunal complied with the prescribed period in reg 4.35D. Having complied with the legislative requirements to invite the applicant to a hearing, the Tribunal’s power under s 426A(1A)(b) to proceed to a decision when the applicant failed to appear at the hearing was engaged.

41. To the extent that the applicant alleges in Ground 2 that the Tribunal’s decision to dismiss proceedings in his absence pursuant to s 426A of the Act was unreasonable, such an allegation in this case, is untenable. While the Tribunal’s discretion to proceed under s 426A must be exercised reasonably, the Tribunal’s decision was within the range of decisions a reasonable Tribunal would have taken on the facts as they were known to the Tribunal at that time: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.

    Conclusion

42. For the foregoing reasons, the application for an adjournment was refused and the grounds of judicial review being shown to be lacking in merit, the application should be dismissed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly.

Associate:

Dated:       22 April 2021