AOX15 v Minister for Immigration

[2016] FCCA 2510

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOX15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2510

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – dismissal due to non-appearance – application for reinstatement of judicial review application –  whether applicant has provided a reasonable explanation – whether the applicant has a reasonably arguable case – no arguable case demonstrated – reinstatement application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 13.03C(1)(c), 16.05(2)(a)

Migration Act 1958 (Cth), s.36(2)(a)

Cases cited:

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: AOX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1159 of 2015

Judgment of: Judge Manousaridis

Hearing date: 20 September 2016

Delivered at: Sydney

Delivered on: 20 September 2016

REPRESENTATION

No appearance on behalf of or by the applicant

Solicitors for the Respondents: Mr M Wiese of Clayton Utz

ORDERS

1. The application in a case filed on 22 August 2016 is dismissed.

2. The applicant pay the first respondent’s costs of the applicant referred to in order 1 set in the amount of $1,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1550 of 2015

AOX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 27 April 2015 the applicant filed an application in this Court for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).  The application was listed for hearing before this Court at 10.15 am on 2 August 2016.

2. At that time and date, Ms Blake, who appeared for the Minister, informed me that the applicant, who is currently detained in immigration detention, had refused to be transported to appear before the Court. Because of the applicant’s non-appearance, I made an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) dismissing the application for judicial review.

3. On 22 August 2016 the applicant filed an application in a case.  That application seeks various orders, but relevant to the matters with which I deal in these reasons for judgment is order number 4, in which the applicant claims an “interim order be granted for the applicant to reinstate this case”. It is reasonably clear that what the applicant seeks by the application in a case is an order pursuant to r.16.05(2)(a) of the FCC Rules to set aside the orders I made on 2 August 2016. That is how I propose to interpret the application in a case.

4. That application in a case was listed for hearing before me at 10.15 am on 20 September 2016, that is to say, today.  On 19 September 2016 the applicant sent by facsimile to the Court Registry a letter, marked to the attention of the deputy registrar and addressed to me.  In the letter the applicant said:

   I, [name of applicant], am the primary applicant in these proceedings and I seek review at the Federal Circuit Court of a decision made by the Refugee Review Tribunal to refuse to grant me a protection visa (class XA).  I am writing this as I find this as my only opportunity to bring my current issue before your Honour’s attention.  Your Honour, I tried various ways to seek legal representation in this matter.  However, I was unsuccessful in finding representation, and as a self-represented applicant I am not aware of legal terms to orally explain my case before your Honour on the 20 September 2016, so I write this as I wish not to be present and excused at the final hearing tomorrow and would request your Honour to kindly make a decision in my matter, relying upon the grounds of my appeal, as I did not have representation to complete my oral or written submissions in this matter.  I apologise for any inconvenience caused by myself in this matter.  I hope your Honour can excuse me in this matter.

5. That letter came to my attention, and I caused my associate to arrange for the Registry to send a letter to the applicant and, of course, copied to the solicitors for the Minister.  In that letter the following was stated:

   If you do not appear at the hearing tomorrow, subject to any submissions to the contrary by the first respondent, his Honour proposes to consider your application in a case as if you were present, having regard to the material that has been filed.  It is a matter for you, however, whether you appear tomorrow.

6. The applicant was brought to Court today, but he did not appear on the hearing of his application.  I have been informed by my associate that the applicant says he did not receive the letter which my associate had requested the Registry send to him.  What I said earlier about the letter my associate sent through the Registry, it was in fact sent by fax to the Immigration Detention Centre by my associate.  In any event, the applicant said he did not receive the letter, and he indicated to my associate and, I think, to Mr Wiese, who appears for the Minister, that he did not intend to appear before me today, although he did say that he stood by the request that he made in his letter, which I have quoted above.

7. The circumstances, therefore, that confronted me was there was before the Court a hearing of an application where the applicant was not present. The FCC Rules provide a number of options where a party does not attend a hearing of an application, and these options are to be found in r.13.03C. One of those options is to “proceed with a hearing generally or in relation to any claim for relief in the proceeding”. I proposed to Mr Wiese, who represents the Minister, that I would hear the matter rather than simply make an order for dismissal.  Mr Wiese did not oppose that course. 

8. In a rather unorthodox fashion, taking as my authority to do so the request made by the applicant in his letter, I read the affidavits on which the applicant relied, both in support of the application in a case and also the affidavit which he had filed together with the application for judicial review.  I also invited Mr Wiese to tender the court book, which he did.

9. Mr Wiese made some brief submissions.  The principal submission was that the merits of the application, if the application were to be reinstated, were not such as should lead the Court to exercise its discretion to reinstate the case.  Mr Wiese said he was content for the Court to assume matters of fact asserted, particularly in the affidavit which the applicant filed in support of the application in a case, although Mr Wiese did submit that if such evidence were to be decisive on any issue, the submission was that the evidence does not support what it purports to assert.

10. I will therefore, then, proceed to deal with the application as if the applicant was here, and on the assumption that the applicant read the affidavits to which I have referred, and the court book is in evidence. I first, then, turn to the principles that should guide me. 

11. Under r.16.05(2)(a) of the FCC Rules, the Court has power to set aside orders made in the absence of a party. The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were discussed by Ryan J in MZYEZ v Minister for Immigration and Citizenship, where his Honour said:[1]

    In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

    (a)         whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

    (b)         the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

    (c)          whether the applicant has a reasonably arguable prospect of success on the substantive application.

    [1] [2010] FCA 530 at [7]

12. In an affidavit filed by the applicant in support of his application in a case the applicant provided an explanation for his not appearing before the court on 2 August 2016.  The applicant there deposed that he:

    [F]ailed to appear at my final hearing as I was suffering from food poisoning and I could not get out of bed which would have made it virtually impossible for me to attend the hearing. I did explain this situation to officer who were to escort me to the hearing.

13. There was no medical certificate annexed to the affidavit that would support the applicant’s statement that he was sick.  For reasons that will become apparent, I am prepared for the purposes of these reasons for judgment, to accept the applicant’s evidence and that that evidence affords a reasonable explanation for the applicant’s not being present before the Court on 2 August 2016.

14. I then move to consider whether, if I were to set aside the orders made on 2 August 20126, the applicant would have reasonable prospects of success on the claims which he makes in his application.  That requires me to set out the applicant’s migration history, the claims for protection the applicant made, and the reasons for which the Tribunal did not accept those claims.

15. The applicant, a citizen of New Zealand, came to Australia in 1986 as the holder of a subclass 444 special category visa.  The applicant’s visa was cancelled on character grounds on 31 May 2013 because, while on parole, the applicant committed and was convicted in 2009 of a number of offences in connection with an attempted robbery, and was sentenced to 10 years and three months’ imprisonment with a non-parole period of six years and three months. The applicant unsuccessfully applied to the Administrative Appeals Tribunal, the Federal Court, the Full Federal Court and the High Court in an attempt to reverse the Minister’s cancellation of his visa.  He then applied for a Protection visa on 16 January 2015.

16. In his Protection visa application, the applicant claimed he will face significant harm if he returns to New Zealand because he has never lived in New Zealand, and he is not aware of New Zealand’s health, social and other systems, and that, because of his unawareness in that regard, he will be put in a “vulnerable stage”, which would make him a target for mistreatment. The applicant claimed he will face significant harm and adverse treatment because he “never lived in New Zealand”, and lived in Australia all his life, and he will find it “quite difficult to settle in a country that is not on the same level to Australia”. The applicant also claimed there is “hardly any employment available in New Zealand”. 

17. The Tribunal accepted the applicant has lived in Australia since he was six years old, and that the applicant would find it very difficult to return to New Zealand where he had only previously lived as a small child, without his family and after a lengthy prison sentence.  The Tribunal, however, was not satisfied that the type of harm the applicant would suffer constitutes serious harm.  The Tribunal generally found the applicant to be a credible witness and was willing to accept that his family in Australia would not be able to support him financially, although they would be willing to do so.

18. The Tribunal found the applicant would be able to access government support in New Zealand that would assist the applicant in finding employment and accommodation, and would also provide financial assistance until the applicant finds employment.  The Tribunal was also not satisfied the applicant would be unable to subsist on the payments he would receive from the New Zealand government.  The Tribunal so found because the applicant had not provided any evidence to support his claims that he could not subsist on the level of the social security payments offered in New Zealand, and also because the Tribunal was not aware of any evidence to suggest persons reliant on social security payments for their income are unable to subsist in New Zealand.

19. The Tribunal also found that, not only is the applicant entitled to access support in New Zealand, but that, as a practical matter, the applicant would be able to access social security and other support systems due to information and assistance available to enable him to do this, including information on the internet, telephone lines, and advice services.  The Tribunal noted that some of the services are accessible from Australia and, as a result, the applicant’s family would be able to assist him to access the services.

20. The Tribunal accepted the applicant had not taken any steps to find out about his entitlements, but found the applicant has the language skills, family support and educational background to enable him to access the appropriate services and financial support in New Zealand.  The Tribunal was also not satisfied the applicant’s prison sentence would prevent him from accessing social security or other support services in New Zealand.  The Tribunal so found because the applicant had not provided any evidence to suggest he is unable to function in society after his prison sentence. The applicant was able to find employment after his first release from prison and had “lined up” employment after the most recent release from prison, but was subsequently taken into immigration detention and the applicant demonstrated an ability to function in society after release from prison.  The Tribunal did not accept the applicant would be unable to find any employment in New Zealand.  The Tribunal relied on the applicant having language skills and experience working in construction, specifically in waterproofing. 

21. I then turn to the grounds of review contained in the applicant’s application.   The application contains two grounds of review.  The first is:

    The Decision of the Refugee Review Tribunal is affected by Jurisdictional error in that the Tribunal constructively failed to exercise it’s Jurisdiction as the Tribunal took irrelevant material into consideration whilst making it’s decision.

    The Tribunal’s finding at paragraph [16] of it’s decision found “that the applicant would be able to access government support in New Zealand that would assist him in finding employment and accommodation and would provide financial assistance until such time as he was able to find employment “This finding is made on the basis that there was no evidence to suggest that person’s relying on social security payments for their income are unable to subsist in New Zealand. The Tribunal erred by failing to consider that the applicant has not resided in New Zealand since the applicant was a minor and the applicant’s entitlement in New Zealand would differ compared to a New Zealand citizen or resident who resides in New Zealand or has been a genuine part of the New Zealand community. The Tribunal also erred by failing to recognise whether the amount offered on social security funds provided by New Zealand government to it’s citizens would be sufficient enough for the applicant to be able to gain accommodation and survive.

    The applicant met the requirements defined in the complementary protection visa Act given the fact that the applicant would suffer significant economic hardship that would threaten the applicant’s capacity to subsist and therefore the applicant will be denied the capacity to earn livelihood of any source and this denial will threaten the applicant’s capacity to subsist however the Tribunal failed to consider the applicant’s claim in a logical manner and therefore the Tribunal denied the applicant procedural fairness and fell into jurisdictional error by misconstruing the sections of the Complementary protection Visa legislation.

22. This ground attacks the Tribunal’s finding, made at paragraph 16 of its reasons for decision, that the applicant would be able to access government services in New Zealand that would assist him in finding employment and accommodation and would provide financial assistance until such time as he was able to find employment.  The ground makes a number of claims in relation to that finding.  First, it claims the finding was made on the basis there was no evidence to suggest that a person’s reliance on social security payments for their income are unable to subsist in New Zealand. The applicant, however, does not claim there was before the Tribunal evidence that did suggest that a person’s reliance on social security payments for their income are unable to subsist in New Zealand; and there is nothing to suggest there was any such evidence before the Tribunal.  In those circumstances there is no reasonably arguable case the Tribunal made a jurisdictional error in finding the applicant would be able to access government services in circumstances there was no evidence to suggest that a person’s reliance on social security payments for their income are unable to subsist in New Zealand.

23. Second, the ground claims the Tribunal erred by failing to consider that the applicant has not resided in New Zealand since the applicant was a minor.  It is beyond argument, however, that the Tribunal did consider that the applicant had not resided in New Zealand since he was a minor. 

24. Third, it is claimed the Tribunal did not consider that the applicant’s entitlements in New Zealand were different compared to a New Zealand citizen or resident who resides in New Zealand or has been a genuine part of the New Zealand community.  There is nothing in the material before me that could reasonably be taken to indicate that the applicant’s entitlement in New Zealand would differ compared with New Zealand citizens who reside in New Zealand or who are a genuine part of the community in New Zealand. It is beyond argument the Tribunal did consider the benefits that would be available to the applicant in New Zealand and found that the applicant as a citizen of New Zealand would be able to access government support in New Zealand and that such support would assist him in finding employment and accommodation and would provide financial assistance until such time as he would be able to find employment.  It is beyond argument that these findings were reasonably open to the Tribunal for the reasons it gave.

25. Fourth, it is claimed the Tribunal failed to recognise whether the amount offered on social security funds provided by the New Zealand government to its citizens would be sufficient for the applicant to be able to gain accommodation and survive.  The Tribunal did consider whether the government assistance it held the applicant would be able to access in New Zealand would be sufficient enough for the applicant to be able to obtain accommodation and survive.  It was not satisfied the applicant would be unable to subsist on the payments he would receive from the New Zealand government. It is beyond argument that it was reasonably open to the Tribunal not to be so satisfied. 

26. Ground 1 also challenges the Tribunal’s conclusion that the applicant has not met the requirements of complementary protection.  Two claims are made.  The first is that the Tribunal failed to consider in a logical manner the applicant’s claims that he would suffer significant hardship that would threaten his capacity to subsist.  It is beyond argument the Tribunal did consider the matters in a logical way.  It considered whether on his return to New Zealand the applicant would be able to obtain government assistance and whether he would be able to find employment. It is beyond argument that it was reasonably open to the Tribunal to conclude the applicant would be able to obtain government assistance and also to conclude it was not satisfied the applicant would be unable to find any employment.  In that regard the Tribunal noted the applicant has language skills and experience to work within construction, specifically waterproofing. The Tribunal also noted that not every employer would be unwilling to employ a person with a criminal record. 

1. Second, the ground claims the Tribunal misconstrued the complementary protection criterion.  There is no arguable prospect this claim can be made out.  It is beyond argument the Tribunal correctly stated the criterion, identified the relevant provisions, including the definition of “significant harm” in s.36(2A) of the Migration Act 1958 (Cth) and applied that provision to the applicant’s case.

2. For these reasons the applicant does not have reasonable prospects of succeeding on ground 1.

3. Ground 2 is as follows:

   The Tribunal constructively failed to exercise it’s Jurisdiction as the Tribunal failed to take relevant material into consideration whilst making it’s decision.

   The Tribunal’s finding at paragraph [18] suggest that the applicant’s criminal history would not prevent him from obtaining employment in New Zealand as there may be some employers who would not employ a person with a criminal record, however the Tribunal was not satisfied that this extends to all employers.

   The issue that arises is whether stated in this way, the Tribunal has failed to recognise that obtaining employment in New Zealand for a person who is an expatriate is quite difficult and especially an expatriate who previously has had convictions for armed robbery exposed on internet websites, which would make it virtually impossible for the applicant to be able to gain employment so he can financially support himself in a long/short term process.

   The Tribunal failed to consider that the applicant would suffer significant economic hardship that would threaten the applicant’s capacity to subsist and therefore the applicant will be denied the capacity to earn livelihood of any source and this denial will threaten the applicant’s capacity to subsist. The Tribunal denied the applicant procedural fairness and fell into jurisdictional error by misconstruing the sections of the Complementary protection Visa legislation.

   The Tribunal failed to consider in a logical manner that there is a real risk that the applicant would suffer significant harm due to being removed from Australia.

4. This ground challenges the Tribunal’s finding at paragraph 18 of its reasons for decision that the Tribunal was not satisfied on the basis of the evidence before it that the applicant would be unable to obtain employment in New Zealand to support himself in the long term.  It is said that the Tribunal failed to recognise that obtaining employment in New Zealand for a person who is an expatriate who, like the applicant, has been convicted for armed robbery and had his convictions exposed to internet websites, would virtually be impossible for the applicant to be able to gain employment so he can financially support himself in the long term process.

5. This claim goes no further than expressing disagreement with the Tribunal’s conclusions. The Tribunal considered whether the applicant’s conviction would prevent him from obtaining employment.  For reasons that it gave – the applicant had language skills and experience to work within construction, specifically waterproofing, the applicant was previously able to find employment after his release from prison, the applicant provided no evidence to suggest persons with criminal records are excluded from the workforce or discriminated against in New Zealand and that is was not satisfied every employer would be unwilling to employ that person with a criminal record – the Tribunal was not satisfied the applicant would be unable to find employment in New Zealand. It is beyond argument that the Tribunal’s finding was reasonably open to it for the reasons it gave. 

6. The ground also claims the Tribunal failed to consider the applicant would suffer significant economic hardship that would threaten his capacity to subsist.  It is beyond argument that that is incorrect.  It is beyond argument the Tribunal devoted most of its reasons for decision to addressing that very question. 

7. Finally, the ground claims the Tribunal failed to accord the applicant procedural fairness and failed to consider in a logical manner the complementary protection criteria and misconstrued the provisions that proscribe the complementary protection criteria. The ground has not particularised the alleged failure to accord procedural fairness, and there is nothing in the material before me that suggests or arguably suggests the Tribunal did not accord the applicant procedural fairness.  As I have already concluded, it is also beyond argument the Tribunal considered the applicant’s case in a logical manner, and that it identified and applied the correct construction of the provisions that prescribe the complementary protection criterion. 

8. For these reasons the applicant does not have reasonable prospects of succeeding on ground 2.

9. Given I have found that neither of the two grounds on which the applicant relies has any reasonable prospects of success, it follows, in my opinion, there would be no utility in setting aside the orders that were made on 2 August 2016.  It therefore follows that the application in a case must be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 28 September 2016