AQB18 v Minister for Home Affairs

[2018] FCCA 1541

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQB18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1541

Catchwords:
MIGRATION – Application for reinstatement – dismissed.

Legislation:
Migration Act 1958 (Cth), ss.66, 91X, 494B
Migration Regulations 1994, reg.4.31
Federal Circuit Court Rules 2001, rr.13.03C, 16.05

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

Applicant: AQB18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 350 of 2018

Judgment of: Registrar Ng

Hearing date: 23 April 2018

Date of Last Submission: 23 April 2018

Delivered at: Sydney

Delivered on: 13 June 2018

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondents: Mr A. Day, DLA Piper Australia

ORDERS

1. The Application in a Case filed by the Applicant on 19 March 2018 to reinstate her Originating Application is dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the amount of $1400.

THE COURT NOTES:

There was no appearance by the Applicant on 13 June 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 350 of 2018

AQB18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

BACKGROUND

1. Before me is an Application in a Case filed by on behalf of the Applicant on 19 March 2018. While not expressly stated, the Applicant seeks to have her Originating Application reinstated under rule 16.05 of the Federal Circuit Court Rules 2001 (“Rules”) after Registrar Tesoriero dismissed it under rule 13.03C(1)(c) when there was non-appearance on the first court date of 5 March 2018.

2. The hearing proceeded before me on 23 April 2018. For the reasons identified below, I dismiss the Application in a Case and order that the Applicant pay the Costs of the First Respondent, fixed at $1,400. Attached to these reasons are the Orders made today in Court, dated 13 June 2018.

3. As the Applicant’s identity may not be published pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”), any reference to her name in the body of this judgment is relevantly suppressed.  

The hearing of the Application in a Case

1. The hearing of this Application in a Case was originally listed on 16 April 2018. It was then relisted before me on 23 April 2018. The Applicant appeared self-representing and was assisted by a Mandarin interpreter.

2. The following documents were tendered without objection during the hearing:

   a)The Originating Application dated 10 February 2018 and Affidavit deposed on 10 February 2018 (annexing the DIBP letter dated 24 October 2017; AAT Decision Record and Statement of Decision dated 9 January 2017; the AAT letter dated 10 January 2017; and the Applicant’s PRC passport bio-Transcript page) – marked EXHIBIT A.

   b)The Application in a Case dated 16 March 2018 – marked EXHIBIT B.

   c)Affidavit deposed on 16 March 2018 – marked EXHIBIT C.

   d)Email by Aaron Day solicitor and Lenny Leerdam Partner dated 26 February 2018, addressed to the Applicant at: [name withheld][email protected] – marked EXHIBIT D.

   e)The Green Court Book – marked EXHIBIT E.

History of the proceedings

1. The following history (mostly identified from the Green Book) is not in dispute.

2. On 1 July 2017, the Applicant arrived in Australia on a visitor visa.

3. On 6 July 2017, the Applicant lodged an online application for a protection visa with the Department of Immigration and Border Protection (‘DIBP’) as a ‘self-registered user’ and nominated [name withheld][email protected] as her email contact address. As proof of her identity, the Applicant attached a scanned image of her passport issued by the People’s Republic of China (PRC).

4. Following the Applicant’s online lodgement, DIBP issued two acknowledgement letters: on 6 July 2017 and 20 July 2017. Both were sent to [name withheld][email protected].

5. On 12 October 2017, DIBP wrote to the Applicant and invited her to attend an interview scheduled on 23 October 2017 at 1 pm. The letter (both in English and Chinese text) was again emailed to [name withheld][email protected]. 

6. The Applicant did not attend her interview with DIBP scheduled on 23 October 2017.

DIBP letter advising that the protection visa was refused

1. On 24 October 2017, a DIBP officer with delegated authority emailed a letter to the Applicant at [name withheld][email protected]. Both the email and the attached letter advised that her application for a Protection (subclass 866) visa had been refused. The attached letter went on to identify her review rights, including that she had 28 days from the date of refusal to seek a merits review from the AAT. As will be demonstrated later in this judgment, the Applicant gave sworn evidence confirming she received this refusal letter from DIBP.

Application for merits review lodged with the AAT

1. On 22 November 2017, an application for review of the DIBP decision was electronically lodged online on behalf of the Applicant at the AAT. The Applicant’s contact details provided to the AAT was her residential address at Eastwood NSW, her mobile phone number [suppressed], and the email address: [email protected]. Annexed to the electronic lodgement were the DIBP refusal letter dated 24 October 2017 and the bio-Transcript page of the Applicant’s PRC passport.

2. On 24 November 2017, the delegate of the AAT Registrar emailed a letter to the Applicant acknowledging receipt of her review application. That letter was emailed to [email protected].

3. On 21 December 2017, a delegate of the AAT Registrar (Deidre Olliver) emailed a second letter to the Applicant at [email protected]. In her letter Ms Olliver indicated to her that the application may not be valid as it had not been lodged within the relevant time period. Referring to reg.4.31(2) of the Migration Regulations 1994, the letter identified that a review to the AAT must be undertaken within 28 days from the date of notification by DIBP. As the primary decision was notified to her on 28 October 2017, her last day to apply was 20 November 2017. The letter further advised the Applicant that she had an opportunity to provide her comments in writing to the AAT Member by 4 January 2018 for further consideration. 

4. On 29 December 2017, an email was received by the National Registry Mailbox of the AAT from [email protected] in response to Ms Olliver’s emailed letter. This email read:

   Dear Olliver,

   I am [Applicant’s name]. As I felt that I would be in danger and be detained by the Chinese government once I return to China, I lodged a 866 Protection Visa Application. But I received the visa refuse letter. After receiving this letter I became deeply pressured and absent minded every day. I wanted to submit the application for review as soon as possible but due to my anxiousness, I missed the 28-day deadline and submitted the application letter. I would like to hereby sincerely apologies for my delay. This delay was not intentional but rather due to my carelessness. I hope that you can give me one more chance to accept my application. I apologies again.

   Yours sincerely,

   [Applicant’s name]

5. On 10 January 2018, a different delegate of the AAT Registrar emailed a letter addressed to the Applicant at [email protected]. That letter formally notified the Applicant that the AAT did not have jurisdiction to determine her application and attached a copy of the Statement of Decision and Reasons by AAT Member Roslyn Schmidt dated 9 January 2018 advising to that effect. Relevantly, the AAT member stated at paragraph 5:

   On 21 December 2017 the Tribunal wrote to the applicant to advise him that it appeared that if did not have jurisdiction in [the applicant’s] case as [the applicant] did not lodge his application within the relevant timeframe. In response [the applicant] did not dispute the information regarding the date he was notified of the Department’s decision, but stated that his application was late because he was distressed and anxious.

   The AAT Member went on to conclude that as the application was out of time by 2 days, the application was not made in accordance with the relevant legislation and the AAT had no jurisdiction in this matter: paragraphs 6 and 7.

The Originating Application              

1. On 12 January 2018, the Applicant filed an Originating Application in the Federal Circuit Court seeking judicial review of the AAT decision dated 9 January 2018. Ticking two boxes, the Application simply sought an order that “the decision of the tribunal…be quashed” and “a writ of mandamus be directed to the tribunal”. The grounds contained the Originating Application were in almost identical terms to the contents of the email sent from the [email protected] address to the AAT on 29 December 2017:

   I am [Applicant’s name]. As I felt I would be in danger and be detained by the Chinese government once I return to China, I lodged a 866 Protection Visa Application. But I received the visa refuse letter. I wanted to submit the application for review as soon as possible but due to my anxiousness. The Administrative Appeals Tribunal decided that I have no jurisdiction to determine my application. That means they canot (sic) review the decision of the delegate of the Minister for Department of Home Affairs.

   The Originating Application was signed in Chinese characters on Transcript page 4 next to the typed name of “[Applicant’s name]” and dated 10 February 2018. The footer of the Originating Application nominated the Applicant’s contact details as “PO Box 517 Granville NSW 2142” and [name withheld][email protected].

2. Filed in support of the Originating Application was an Affidavit sworn by the Applicant on 10 February 2018. The footer of the Affidavit again nominated the Applicant’s contact details as “PO Box 517 Granville NSW 2142” and the email address [name withheld][email protected]. Two very brief assertions are made in the Affidavit:

   1. I was born in China on the day 01/02/1992

   2. I lodged the application in person, I fear to return to China.

   Annexed to the affidavit were:

   a)the DIBP letter dated 24 October 2017 (see paragraph 12 above);

   b)the AAT Decision Record and Statement of Reasons of Member Scmidt dated 9 January 2018 and notification letter dated 10 January 2018 (see paragraph 17); and

   c)a certified copy of the Applicant’s PRC passport, being the same one submitted in support of the protection visa application lodged on 6 July 2017 (see paragraph 8).

   A signature in Chinese text appeared next to the Applicant’s name (in English script) swearing that the contents were true and correct.

3. Upon the filing of the Originating Application, the first court date of 5 March 2018 at 10.15 am was allocated.

4. On 5 March 2018 the matter came before Registrar Tesoriero. As there was no appearance on behalf of the Applicant, the Registrar dismissed the application pursuant to rule 13.03C(1)(c) of the Rules and fixed costs against the Applicant for $330.

The Application in a case

1. On 19 March 2018, an Application in a Case and supporting Affidavit was filed on behalf of the Applicant. In similar circumstances with the Originating Application, the footer again nominated “PO Box 517 Granville NSW 2142” and [name withheld][email protected] as her contact details. Under Orders sought:

   1. There was no appearance by the Applicant at the first Court date on 5 March 2018.

   2. I wish to have my Application re-instated before the Judge.

   3. Please see attached statement.

   A document headed ‘Statement’ containing the following text was annexed:

   I am [Applicant’s name]. I came to Australia with a Visitor Visa on 1 July 2017. On the second of my arrival I requested an agency at Campsie NSW to lodge a 866 Protection Visa application for me. However, my application was denied without any interview conducted on 24 October the same year. I then submitted my application to the AAT for further review, but since I submitted the application one day late, my application was once again denied. I emailed the AAT to explain my situation but it considered my application to be invalid. This series of events hit me quite hard and I have been very depressed since. A weak woman like me came to Australia hoping to seek a brighter future, yet I encountered so many hardships. I cried and prayed everyday, yet who would come and answer my prayers?

   My first court hearing was on Monday of 5 March 2018. I had previously called the solicitor at DLA Piper Australia but no one answered. I also sent an email but received no reply. As a result, I ended up missing my first court hearing on 5 March. I am greatly upset by this turnout. I hope the court can give me one more chance. Thank you very much.

   Yours Sincerely
   [Applicant’s name] [Chinese signature]

   17/03/2018

2. The Affidavit deposed on 16 March 2018 was filed in support of the Application in a Case. Apart from the date of swearing, it was in identical terms to the one previously filed on 10 February 2018 (see paragraph 19 above), with the 2 brief assertions and contact details in the footer. A signature in Chinese script appears next to the name “[Applicant’s name]”. There were no annexures to the Affidavit.

The Applicant’s oral evidence 

1. During the hearing of the Application in a Case, the Applicant gave sworn evidence on a number of topics:

Background

1. Before coming to China, the Applicant worked as an accountant in an office for almost a year. She did not have any accounting qualifications and had been introduced to the position by an acquaintance. She had not finished high school and completed the year 11 equivalent in 2011. Before this position she had worked in an office environment (Transcript pages 48.34 – 50.26).

Original application lodged with DIBP on 6 July

1. In relation to her original application to DIBP for a protection visa:

   a)This had been prepared by an unidentified immigration agent. The Applicant did not pay for this application as her relatives in China had contacted this agent and paid for it on her behalf (Transcript page 16.1 – 16.9).

   b)After arriving in Australia, the Applicant met this agent who helped her apply for the protection visa with DIBP (Transcript page 16.45 – 17.10).

   c)The Applicant adopted the copy of her PRC passport bio-Transcript page as hers (Transcript pages 19.41 – 20.1), which was identical to the one filed in support of her on-line application for a protection visa (contained in page 19 of the Green Court Book).

Letter received from Department of Immigration dated 24 October 2017 sent to [name withheld][email protected]

1. The Applicant was then shown the letter from DIBP notifying her that her protection visa had been refused:

   a)After she applied for the protection visa (Transcript page 13.31), she received this letter after it was emailed to her at [name withheld][email protected] (Transcript pages 14.1; 14.33).

   b)At the time the Applicant received this, she was still using the email address (Transcript page 21.11), and was living at her nominated residential address in Eastwood NSW at the time she received this letter, and continues living there (Transcript page 14.6).

   c)On receiving the letter, the Applicant used a software translator (by taking a photo of each Transcript page) which allowed her to translate the text into Chinese. This allowed her to understand its contents conveying that her visa application had been rejected for a range of reasons: “the contents, as my application was being objected” (Transcript pages 15,1; 17.39 - 18.3; 40.11 – 40.32).

   d)She understood she had 28 days to apply for a review to the AAT  (“needed to do something before 28 days”) (Transcript page 18.24).

   e)After receiving the DIBP letter, the Applicant went to find the solicitor, Tong Li (a female), who helped her apply to the AAT. This was about a week after she received the letter, (Transcript pages 15.11 – 15.35; 17.26; 18.30).

   f)Tong Li told her she would deal with it and prepared these materials (Transcript page 15.40).

   g)Towards the end of her oral evidence, the Applicant resiled from her original position and now denied receiving the DIBP letter via the [name withheld][email protected] account. She now claimed that she only received the letter from her solicitor who told her about it as she did not access the [name withheld][email protected] account which had been set up by her solicitor (Transcript page 40.9). She could not explain why the solicitor had set up both the [name withheld][email protected] and [name withheld]@gmail.com email addresses (Transcript page 40.1). However, in response to a later question in cross-examination by the Minister’s lawyer, she went back to her original position and agreed that she did in fact receive the letter at the [name withheld][email protected] and took it to the lawyer (Transcript pages 39.21 – 39.38; 40.39).

   h)The Applicant also agreed she received this letter in the mail at her residential address in Eastwood (“was posted to my address”) (Transcript page 42.29).

The application to the AAT

1. The Applicant was then asked about her application at the AAT:

   a)She paid Tong Li $800 to file the Application in the AAT (Transcript page 16.3).

   b)She did not attend the AAT hearing and only found out about it “when the solicitor, Tong Li, told her later” (Transcript pages 16.15 – 16.21)

2. In relation to the AAT decision:

   a)The Applicant had never seen a copy of the AAT decision before today (Transcript page 18.40).

   b)Tong Li notified her by sending a SMS that her application to the AAT was refused, but never sent her a copy of the decision (Transcript pages 19.5 – 19.24).

   c)She was unaware of the email address [email protected] (which appears at the top of the letter sent by the AAT), and has never seen the accompanying AAT letter dated 10 January 2018 (Transcript page 19.26 – 19.39).

Originating Application dated 12 February 2018 – marked Exhibit A

1. The Applicant was then asked about her Originating Application filed in the Federal Circuit Court:

   a)The Applicant agreed that she filed the Originating Application on 12 February 2018 (Transcript page 9.16), and that her solicitor, Tong Li, prepared the documents to commence these proceedings with the Court (Transcript page 20.3 – 20.20).

   b)She identified the postal address of PO Box 517 Granville (at the footer of her document) belonged to her “solicitor”, Tong Li (Transcript page 9.36), who was introduced to her by a friend who took her to the office at Burwood (Transcript page 10.1)

   c)The Applicant sat in front of Tong Li when they completed the Form. Tong Li asked her some questions and prepared the document as she did not know much English (Transcript page 10. 10 – 10.25).

   d)She paid a filing fee ($330) to Tong Li who filed the application for her (Transcript page 20.21 – 20.47).

   e)She used the email address [name withheld][email protected] at the time she lodged this application (Transcript page 21.4).

   f)When shown the Originating Application, the Applicant now denied signing the Application on Transcript page 4 (Transcript page 32.25; 43.5), and indicated that the hearing was the first time she has ever seen this document (Transcript page 34.5 – 34.8).

Affidavit sworn on 10 February 2018 - marked Exhibit A

1. The Applicant was shown her Affidavit in support of the Originating Application:

   a)She agreed that it contained her name and address, and her email address [name withheld][email protected] in the footer. But she had since cancelled the email address as she did not use it much, but agreed she was using this email address when she filed the Affidavit (Transcript pages 10.28 – 11.25).

   b)She provided the information contained in the Affidavit to the ‘solicitor’, namely she was “born in China on 1.02.1992”, “lodged the application in person”, and “fear to return to China” (Transcript page 12.30).

   c)The affidavit was witnessed by “Tong Li”, who she understood was a solicitor in Burwood (Transcript page 13.5 – 13.19).

   d)In a remarkable disclosure, the Applicant now asserted that, as with the Originating Application, this was the first time she has ever seen this Affidavit (Transcript page 34.5 – 34.8), had not sign her name in Chinese text as the deponent (Transcript pages 30.25 – 30.36; 32.45; 43.5 – 43.15) and now claimed that she allowed Tong Li to sign this affidavit on her behalf (Transcript page 44.1).

First court date on 5 March 2018

1. The Applicant was then asked about why she did not attend Court on 5 March 2018:

   a)She explained that she did not come to court because “nobody gave her notice” (Transcript page 21.21) before the hearing, including her solicitor, so she missed it (Transcript page 22.10).

   b)As no one told her to do so, she did not ask Tong Li to go to court on her behalf (Transcript page 22.45 – 23.5).

Application in a Case filed on 9 March 2018 (Transcript page 11.33) – marked Exhibit B

1. The Applicant was then asked about the Application in a Case:

   a)She agreed that when filing the Application in a Case to reinstate her matter on 19 March 2018 (Transcript page 9.31), she provided the same email address at the footer [name withheld][email protected] mailto:[email protected] was using this email address at the time she lodged this application (Transcript page 11.33).

   b)When Tong Li prepared this Application in a Case for her, she was told her “she must go this time” (Transcript page 21.30 – 22.16).

   c)She could not exactly recall when Tong Li contacted her after missing the 5 March 2018 court date, except it occurred within the last month [the hearing occurring on 23 April 2018] (Transcript page 23.15).

   d)When she went to see Tong Li, she did not ask her why she didn’t tell her about the first court date, although she felt anxious when she was told she had missed the court date (Transcript page 22.19).

   e)Tong Li told her “she would fix the problem and prepare us the court hearing instead” (Transcript page 22.35).

   f)In similar circumstances to the Originating Application, the Applicant asserted that the first time that she had ever seen the Application in a Case was during the hearing before me (Transcript page 34.5 – 34.8). When shown her signature on Transcript page 2 next to her name in English text, she agreed while it spelt her name in Chinese it was “not my signature” (Transcript page 24.19; 33.5 -33.11).

   g)When asked about the dates appearing next to the signatures on the Application in a Case and the supporting Affidavit, the Applicant stated she did not go see Tong Li on either 16 or 17 March 2018 (Transcript page 24.27) (Transcript page 31.17). When shown the nor the 2^nd Affidavit dated 16 March 2018 (Transcript pages 31.1; 31.13; 43.5).

Statement annexed to Application in a Case (Transcript page 24.30)

1. The Applicant was then taken to the typed Statement dated 17 March 2018 which was annexed to the Application in a Case, which was translated to her by the Mandarin interpreter (Transcript pages 25.13 – 25.15):

   a)Although her name appeared in Chinese in the signature block, this was not her handwriting, she never signed this Statement (Transcript pages 24.35 – 25.11; 28.12; 43.38 – 43.48), and that this was the first time she has ever seen this document (Transcript page 34.5 – 34.8).

   b)When asked whether she ever told Tong Li the contents of the statement, she initially answered “No” (in Mandarin) but then changed this to answer “Yes” (Transcript page 25.34 – 25.41).

   At this juncture I reminded the Applicant that she had taken an oath to tell the truth in giving sworn evidence (Transcript page 25.35):

   c)After the Mandarin interpreter translated the entirety of the Statement, she recalled that she only told Tong Li in previous conversations only some of the information that was now recorded in the Statement (Transcript page 27.32), namely:

   I am [Applicant’s name]. I came to Australia with a Visitor Visa on 1 July 2017. On the second of my arrival I requested an agency at Campsie NSW to lodge a 866 Protection Visa application for me. However, my application was denied without any interview conducted on 24 October the same year.” (Transcript pages 25.40 – 26.6):

   ………..

   Was a weak woman like me come to Australia hoping for a bright future, yet I encountered so many hardships. I cried and prayed every day, yet who would answer my prayers? (Transcript page 26.18 – 26.26; 27.39)

   The Applicant denied she had done anything else in the Statement, such as calling or emailing the lawyer for the Minister (Transcript page 26.33), and surmised that Tong Li must have done this (Transcript page 27.42- 27.45; 43.21).

   d)After she was told by Tong Li on an earlier occasion (and not on 16 or 17 March 2018 when these documents were dated) that she had missed the first court date, the Applicant told her she “was greatly upset by this”. Tong Li then replied “they will fix it, and you must come to the hearing.” (Transcript page 27.25).

Affidavit in support of Application in a case deposed on 16 March 2018 – marked Exhibit C

1. The Applicant was shown her Affidavit deposed on 16 March 2018,

   a)She agreed that she was using the [name withheld][email protected] address to receive correspondence at the time (Transcript page 28.14 – 29.45).

   b)While the Applicant agreed that her Affidavit recorded her name in Chinese in the signature box on page 2, she again denied this was her handwriting or her signature (Transcript pages 30.33; 33.20). As with the other court documents, the first time she has ever seen this Affidavit was during the hearing (Transcript page 34.5 – 34.8). When I explained to her that an affidavit was a sworn document which purported to be hers, she now stated that she must have asked Tong Li to sign this document on her behalf (Transcript page 44.21)

Email from Immigration dated 26 February 2018 at 11.50 (marked D)

1. The Applicant was then shown Exhibit D. This was an email sent by a Mai Nguyen from the office of DLA Piper to [name withheld][email protected] on 26 February 2018 notifying her of the Court date of 5 March 2018 at 10.15 am. The email was also posted to the Applicant at “PO Box 517 Granville NSW 2142” and to her residential address in Eastwood NSW.

2. In cross-examination, the Applicant gave the following responses:  

   a)The Applicant initially agreed with the proposition put to her that she had received this email via [name withheld][email protected] address on 26 February 2018 and was notified of the need to be at court on 5 March 2018 (Transcript page 37.35). But in the next sentence she stated “I did not receive that” (Transcript page 38.1) and that “it was sent to her solicitor’s place” (Transcript page 42.15). When pressed whether she was notified, she replied: “I don’t know” (Transcript page 38.5).

   b)the Applicant now denied that the email address [name withheld][email protected] which the DLA Piper email was sent to was her email address and that Tong Li had probably set it up (Transcript page 36.35 – 36.45). However, she conceded in cross-examination her earlier evidence was she was receiving emails at this address right up to 16 March 2018 (Transcript pages 36.10; 37.34; 37.5).

Further questions posed to the Applicant where she resiled from her earlier evidence

1. Following the conflicting nature of her evidence, I proceeded to ask the Applicant further questions which elicited the following responses: 

   a)the Applicant repeated that Tong Li set up the email address [name withheld][email protected], she did not know the details when this occurred (Transcript page 38.20), or why Tong Li set up the email address for her (Transcript page 39.13 – 39.20).

   b)She denied ever setting up or using or accessing the email address (Transcript page 38.29 – 38.40), but agreed that the mobile phone number identified in the footer of these documents belonged to her (Transcript page 39.5).

   c)Except for the DIBP letter dated 24 October 2017 and her passport bio-Transcript page annexed therein, she was adamant that she had never seen the court documents marked Exhibits A, B or C until attending this hearing (Transcript page (Transcript pages 34.5 - 34.11; 42.20; 43.6).

   d)These documents marked A, B and C were produced by her solicitor, but she did not know when this occurred (Transcript page 42.22).

   e)She was not responsible for bringing the Originating Application, Application in a Case, or Affidavits to file in the Registry (Transcript page 31.35)

   f)When it was explained to her the nature of an Affidavit and that falsely swearing to one was a criminal offence, the Applicant replied that she had not realised that it was a legal document which had to be sworn by the person who made it or that it could not be signed by others on her behalf (Transcript pages 44.40; 45.4).

   g)Remarkably, the Applicant went on to admit she did not really know what was the basis of her application which is before the Court today (Transcript page 34.26).

   h)She agreed she had changed her evidence several times already regarding her use of the email addresses in her application. But her final position is that “Yes, and it was being used, those email address, but it’s not used by me” (Transcript page 45.6 – 45.41)

   i)After again stating that it was not her signature on the Originating Application and supporting Affidavit (Transcript page 46.15) and having only seen those documents for the first time during the hearing (Transcript page 46.21), she reiterated that she did not even know the contents of those documents before seeing them today, and that they must have been put together by Tong Li (Transcript page 46.24), even though Tong Li had never attended court and was not acting as her lawyer (Transcript page 46.40).

   j)Assuming she had to come to court on 5 March 2018, in circumstances where Tong Li was not acting for her and where she did not know the contents of her Originating application, the Applicant stated that she did not know anything about the prospects of succeeding in her application (Transcript page 48.10).

   k)While she was aware she was applying for a protection visa which an agent in China told her to apply for, she did not know upon what basis she was applying for the protection visa (Transcript page 48.32), and that she “came to Australia alone and tried to find a better future, That’s it.” (Transcript page 48.8). That agent did not tell her anything else about the visa, except to “explain with this visa you can legally work…yes, you can legally stay in Australia, and you know, work – you got work permission”. (Transcript page 50.18 – 50.42).

   l)In her final answer to a question I posed:

   Q.      And what was the basis you were going to rely on to apply for the protection visa …?”

   A. I don’t know – I have no idea about those details, or the document prepared by my solicitor.

The relevant law

1. At the commencement of the hearing, I explained to the Applicant that the Court must engage in exercising its discretion in such matters as provided in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (“MZYEZ”). It is a balancing exercise, taking into account three factors (at [7] per Ryan J in MZYEZ):

   (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[…];

   (c)whether the applicant has reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066 at [18]:

   The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.

The Minister’s submissions

1. The Lawyer for the Minister’s submissions can be succinctly summarised:

   a)The Court would be satisfied on the evidence that the Applicant had been properly notified on 26 February 2018 by way of the email sent to her at [name withheld][email protected], which she had nominated on her court documents.

   b)There was a lack of merits in the Applicant’s substantive application, especially as her evidence confirmed that she did not know what was written in the grounds of the application, which do not raise any arguable case for the relief sought.

   c)The Applicant’s grounds that she relied upon in her Originating Application filed on 12 January 2018 (as reproduced in paragraph 16 above) were virtually identical to the contents of her emailed letter to the AAT sent on 29 December 2017 (which asked her to comment on the fact that she was out of time). As the AAT Member had taken this same explanation into account in her Statement of Reasons (referred to in paragraph 5), there was no basis for her to now seek judicial review in this Court.   

   d)The refusal letter by DIBP dated 24 October 2017 was emailed to the Applicant’s email address (name [email protected]), which she had nominated in her original application for a protection visa. As that notification letter fully complied with the natural justice requirements under s.66(2)(d) of the Act, the Applicant was properly notified of the delegate’s decision in accordance with s.494B(5) of the Act.

   e)For these reasons, her Application to reinstate her Original Application ought to be dismissed.

The Applicant’s submissions

1. I invited the Applicant to make submissions in relation to the two relevant factors for the Court’s consideration, in particular the first and the third, as set out in MZYEZ.

Did the Applicant have a Reasonable excuse?

1. In seeking to explain whether she had a reasonable excuse for failing to attend her first court date on 5 March 2018, the Applicant testified that it was because she did not receive the court hearing notice (“so that’s why I didn’t attend”) (Transcript page 41.10). While she was the only one living at the address in Eastwood, she only received notification by post on one occasion from DIBP at this address, but this was a later letter advising her that she had missed the Court hearing (Transcript page 41.33 – 41.45). This, however, contradicted her earlier evidence that she received the DIBP letter in the post (Transcript page 42.29).

2. As a final submission, the Applicant stated that the late application “was my mistake but I still urge that the court can give me another chance to re-open my application” and “wish I can stay here.” (Transcript page 61.18 – 61.29).

FINDINGS

1. Having carefully considered all the evidence, I do not accept the Applicant’s excuse that she had not received the email communication sent to her on 26 February 2018 at [name withheld][email protected] because it had been  exclusively set up and used by her “solicitor”, Tong Li. Notwithstanding her late denials (which I will return to later), I am satisfied that the email address [name withheld][email protected] contained in the footer of her Originating Application, the supporting Affidavit, her Application in a Case, and that supporting Affidavit, was in fact used by the Applicant during the relevant period. In fact, the Applicant’s attendance at this hearing on 26 April 2018 seeking to reinstate her Originating Application was predicated on this same email address being nominated as her contact details.

2. I am further reinforced in arriving at this view for the following reasons. First, although the Applicant nominated different email addresses as a means of communication throughout her application process, these correspondences (from DIBP or the AAT) were all promptly responded to on behalf of the Applicant. Secondly, the contents of the responses by the Applicant despite the change of email addresses continue to share a high degree of commonality. For example, both the contents of the email sent to Deidre Olliver at the AAT on 29 December 2017 (from the [email protected] address) is virtually identical to the grounds contained in her Originating Application filed on 12 January 2018. In the former document, the Applicant acknowledged she “missed the 28-day deadline in filing her application due to my anxiousness”. In her Originating Application (where she now nominated the email address of [name withheld][email protected]), the Applicant repeated very similar content from her emailed letter to the AAT in her Grounds and again referred to “my anxiousness”.

3. In my view, the continuity of her explanation, both at the AAT and in her Originating Application (since dismissed in this Court) links the Applicant to the series of events leading up to the hearing of this Application in a Case.  

4. I now return to the fact that towards the end of her sworn evidence before me on 26 April 2018, the Applicant attempted to disavow ever signing the Originating Application and Application in a Case, or even swearing the two Affidavits filed in support. On one view, this suggests that the contents of her documents have been fabricated by Tong Li claiming to be the Applicant (whether she is in fact a solicitor who may be subject to disciplinary proceedings remains to be seen). On a more generous view, perhaps the Applicant did in fact authorise Tong Li to sign these documents on her behalf. Either way, I pause to observe that the Applicant and Tong Li may be complicit in having committed offences relating to perjury or false swearing of the affidavits.

5. Having considered all the evidence and taken into account the Applicant’s demeanour during her sworn evidence, I am of the view that her sudden reversal, by now denying ever using [name withheld][email protected] or [name withheld][email protected] to receive any related correspondence is a belated attempt to distance herself from these email addresses and shift the blame Tong Li to maintain that she was never notified of the court date on 5 March 2018.

6. Remarkably, these denials only arose towards the end of the Applicant’s sworn testimony, in circumstances where she started her evidence by accepting that she had used this email address and attended Tong Li’s office in Burwood to prepare her application. Perhaps when she realised this was detrimental to her claim that she was never notified, she resiled from this position and now asserted that she had never met with Tong Li to prepare or sign any court documents, including on 16 or 17 March 2018. But as I summarised above, during cross-examination she agreed with the Minister’s lawyer that she was still receiving correspondence at this nominated email address at the relevant time.

7. All of this causes me great concern about the Applicant’s credibility. Having asked her a number of pertinent questions while she was in the witness box, the Applicant’s inconsistent assertions that she never used the [name withheld][email protected] email address (after originally stating that she had) is somewhat disingenuous. Her “flip-flopping” on this crucial issue leads me to conclude that she is not a reliable witness. Accordingly I am not prepared to accept her evidence that she was unaware of the 5 March 2018 court date because Tong Li did not tell her.

8. In arriving at this view, I observed that the Applicant presented as a confident witness, who gave her evidence with the assistance of a Mandarin interpreter. I am not persuaded that she was somehow confused with the questions posed to her or that anything was lost in translation, either during cross-examination by the Minister’s lawyer or in questions posed by me during her sworn evidence. Rather, I am of the view that she deliberately shifted her position when she thought it would advance her claim. 

Does the Applicant have a reasonably arguable prospect of success on the substantive application?

1. But even if I were to accept that the Applicant had a reasonable excuse and had not been notified of the court date and gave her the benefit of the doubt, it is necessary for me to consider whether the Applicant has reasonable prospects of succeeding on the substantive application, in accordance with the principles enunciated in MZYEZ. 

2. In my view, she fails dismally on this question. Until the hearing of this application, the Applicant was adamant that she had never seen these Court documents and was unaware of the pleaded grounds. She further asserted that she had never completed its contents, never signed the Applications (both the Originating one and the Application in a Case), and never swore the two Affidavits in support. Her sworn evidence, which she never wavered upon, (as reproduced above at paragraph 38(o)) was that she had no idea about the bases of her claim in the Originating Application. When it was explained to her the ramifications of a falsely sworn affidavit, the Applicant now claimed that she was reliant on her solicitor to prepare (and swear) these documents for her and believed she could authorise Tong Li to swear them in her name.  

1. In such circumstances, the Applicant’s ignorance of the Originating Application that was lodged on her behalf leads me to conclude that she could not have genuinely or reasonably prosecuted her refugee claim before the AAT or even in this Court.

2. I am also satisfied that the Applicant was properly notified by DIBP in compliance of the necessary requirements under the Act, and that the AAT Member had taken into account the same grounds she advanced in her email letter date 29 December 2018, before finding she was out of time and the AAT had no jurisdiction.

3. For these reasons, I find that the Applicant had no reasonably arguable prospects of succeeding in her Originating Application.

CONCLUSION

1. I make two findings.

2. First, I am not satisfied that there was a reasonable excuse for the Applicant’s non-attendance.

3. Secondly, even if I were to be satisfied that she had a reasonable excuse, in my view the Applicant does not have any reasonably arguable prospects of success in the substantive application given her apparent lack of knowledge of the contents of her Originating Application or supporting affidavit, both of which she now denies ever signing or deposing. 

4. Accordingly, I dismiss the Applicant’s Application in a Case to reinstate her Originating Application.

5. In relation to the question of costs, I am of the view that a lump sum amount of $1,400 be payable by the Applicant to the First Respondent, in the circumstances where the Minister’s lawyer did not file any evidence or submissions in advance to the hearing on this question.  

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Registrar Ng

Associate: 

Date:  13 June 2018