ARX18 v Minister for Immigration
[2019] FCCA 3021
•24 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARX18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3021 |
| Catchwords: MIGRATION – Reinstatement – applicant late to show cause hearing – application dismissed pursuant to rule 13.03C(1)(c) – matter relisted – application treated as oral application for reinstatement – unparticularised grounds of review – Tribunal’s reasons and materials in court book provide no basis upon which application demonstrates arguable case for relief – application refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr 13.03C, 16.05 Migration Act 1958 (Cth), ss 5J, 36, 65, 474, 476 |
| Cases cited: AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 BAL17 v Minister for Immigration and Border Protection [2018] FCA 792 BTR15 v Minister for Immigration and Citizenship [2016] FCA 892 CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 Craig v South Australia (1995) 184 CLR 163 Gallo v Dawson (1990) 93 ALR 479 House v The King (1936) 55 CLR 499 Jackamarra v Krakouer (1998) 195 CLR 516 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 MZYPB v Minister for Immigration and Citizenship [2012] FMCA 226 MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Savrimootoo v Minister for Immigration and Border Protection [2018] FCA 1167 SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143 SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725 SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 |
| Applicant: | ARX18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 410 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 18 October 2019 |
| Date of Last Submission: | 18 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondents: | Ms Roberts |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Pursuant to r 16.05 Federal Circuit Court Rules 2001 (Cth), the application for reinstatement of the proceeding be dismissed.
The applicant pay the first respondent’s costs of the application for reinstatement fixed at $300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 410 of 2018
| ARX18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 19 February 2018, the applicant sought judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 16 January 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant her a Protection visa pursuant to s 65 of the Migration Act 1958 (Act).
These reasons for judgment explain why orders were made refusing an oral application for reinstatement of the application pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth) (Rules). The proceeding had recently been dismissed for non-appearance at the hearing. In summary, although the applicant’s reasons for her absence at the hearing were adequately explained, the unparticularised grounds of review do not raise an arguable case for the relief claimed. The Tribunal gave proper consideration to her circumstances and the country information before it in concluding that she would not suffer economic hardship at a level that met the criteria set by par 5J(5)(d) of the Act.
Background
The applicant, a female Malaysian citizen aged 42 years, who first came to Australia on 8 March 2017 holding a visitor visa, made application on 10 May 2017 for a Protection (Class XA) visa.
In her Protection visa application, the applicant’s claims for protection identified the following matters:
a)she came from a poor family in a small town;
b)she was married with two children;
c)her husband “had a problem at his work place” which meant that he could not work;
d)her husband was subsequently “diagnosed with anemia hemoragi, hypertrophic cardiomyopathy and hypertension”;
e)because of her husband’s health issues, she had to work to support her family;
f)she hoped that working in Australia would give her enough money to support her husband’s medical treatment; and
g)she could not go back to Malaysia because she would not earn enough money to support her family.
Delegate’s decision
On 17 August 2017, a delegate of the Minister refused to grant the application and gave reasons for so doing. The delegate correctly identified the applicant’s claims to protection and, after assessing relevant country information, concluded that the applicant was not a person in respect of whom Australia owed protection obligations, either as a refugee under s 36(2)(a) or by way of complementary protection under s 36(2)(aa) of the Act.
Tribunal’s decision
On 1 September 2017, the applicant applied to the Tribunal for a review of the delegate’s decision.
On 13 December 2017, the Tribunal invited the applicant to appear at a hearing in Sydney to give evidence and present arguments relating to the issues arising upon the decision under review.
On 17 December 2017, the applicant requested that the Tribunal reschedule her hearing so as to accommodate her change of residence to South Australia. The applicant attended the hearing via video link from Naracoorte on 11 January 2018 and was assisted by a Malay interpreter.
On 16 January 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa. It provided a statement of its reasons for that decision (Reasons).
The Tribunal considered the applicant’s claims of economic and family hardship: [15]-[19]. The Tribunal accepted that while the applicant may have come from modest circumstances, her family was not underprivileged in a general sense: [16]. The Tribunal accepted that the applicant’s husband was no longer working due to medical ailments, and that their extended family only had limited income.
However, the Tribunal was not satisfied that the family’s economic circumstances, considered cumulatively and also taking into account any associated psychological pressures, involved serious harm amounting to persecution as required by the Act: [18]. In its assessment of the refugee criterion, the Tribunal found that even against the backdrop of her husband’s health problems and her children’s expenses, the applicant’s economic pressures did not result in serious harm such as to attract protection obligations by Australia: [21].
For those reasons, the Tribunal found that the applicant did not meet the refugee criterion in s 36(2)(a) or the alternative criterion in s 36(2)(aa) of the Act and affirmed the delegate’s decision not to grant her a Protection visa: [27]-[30].
Procedural history
On 19 February 2018, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which she exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review.
By a Response filed on 1 March 2018, the Minister opposed the application on the stated basis that it did not contain any proper grounds of review and failed to establish jurisdictional error.
On 12 December 2018, orders were made, by consent, listing the matter for a show cause hearing. The consent order fixed the appointed date and time for that hearing. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions, however, those opportunities were not taken. In those circumstances, the Minister’s submissions were responsive to the grounds appearing in the application. The Minister reminded the applicant of the appointed hearing date and time on several occasions.
When the proceeding was called on for hearing, there was no appearance by or on behalf of the applicant. When the applicant was called to appear, there was no response to the call. An order was made pursuant to r 13.03C(1)(c) of the Rules, that the application be dismissed with costs.
Sometime later, the applicant arrived at the registry, apparently stating that she had been present at court at 2:15pm. Whether or not that was so, arrangements were made for the application to be listed for further hearing on Friday, 18 October 2019. On that day, I treated the application as being an application for reinstatement of the proceeding.
Reinstatement
Where an applicant does not appear at a hearing, the court may dismiss the application: r 13.03C(1)(c).
The court may set aside an order made in the absence of a party: r 16.05(2)(a). The principles which are applicable to the discretionary power to reinstate a proceeding are well settled. Where a power conferred by rules of court is cast in discretionary terms, the exercise of such power is not automatic but calls for the exercise of that discretion: cf Gallo v Dawson (1990) 93 ALR 479, 480 (McHugh J). Inherent in the conferral of a discretionary power is an assumption that some applications may be refused: Jackamarra v Krakouer.[1] The waste of scarce court resources is not an irrelevant consideration: MZAKQ v Minister for Immigration and Border Protection.[2]
[1] (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J).
[2] [2016] FCA 1392, [11] (Logan J).
In relation to the power to reinstate a proceeding, in CAL15 v Minister for Immigration and Border Protection,[3] Mortimer J restated the applicable test in these terms:
. . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
See also the discussion in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs;[4] MZYEZ v Minister for Immigration and Citizenship;[5] BTR15 v Minister for Immigration and Citizenship;[6] AAI15 v Minister for Immigration and Border Protection.[7]
[3] [2016] FCA 1344, [4].
[4] [2005] FCA 1066, [18] (North J).
[5] [2010] FCA 530, [7] (Ryan J).
[6] [2016] FCA 892, [7] (Edelman J).
Applicable threshold
The exercise of discretion in favour of an order for reinstatement does not require the court to be satisfied of the grounds of review to the same level as apply at a final hearing on judicial review.[8] On an application for reinstatement, the threshold which is applicable to consideration of the merits of the application is whether the grounds for judicial review were shown to be ‘arguable’.[9] In CAL15, Mortimer J stated:[10]
The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. (emphasis added)
[8] CAL15, [2016] FCA 1344, [5].
[9]CAL15, [2016] FCA 1344, [5] citing MZABP v Minister for Immigration and Border Protection[2015] FCA 1391, [62].
[10] CAL15, [2016] FCA 1344, [6].
More recently, in Savrimootoo v Minister for Immigration and Border Protection,[11] Mortimer J referred to CAL15 and described the discretion to reinstate a proceeding as a broad one.
[11] [2018] FCA 1167, [47].
The assessment upon an application for reinstatement, which requires the court to consider whether a ground of review is arguable, is evaluative. As Ryan J observed in MZYEZ, it follows from the principles considered above that the “decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles” stated by Dixon, Evatt and McTiernan JJ in House v The King[12]: cf BAL17 v Minister for Immigration and Border Protection.[13]
[12] (1936) 55 CLR 499 at 504 to 505
[13] [2018] FCA 792, [10] (Bromwich J).
I apply these principles in the present application.
Consideration
As the applicant was self-represented, I have re-examined the materials comprising the court book, the Tribunal’s Reasons and her application for review.
If the Tribunal’s decision was a privative clause decision,[14] it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[15] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[16] Whether it should do so is a separate issue. The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[17] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[14] Act, s 474(2).
[15]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[16] Act, s 476(2).
[17]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Putting aside the absence of any evidence, the Minister quite properly accepted the applicant’s explanation for her non-appearance.
No question was raised whether any prejudice was suffered by the Minister if the matter were to be reinstated.
The decisive consideration against the grant of relief was that the applicant did not demonstrate an arguable case on judicial review.
The application for review contained 2 grounds of review.
Ground 1
Ground 1 reads:
I am requesting due to I am not satisfied with the decision of AAT. It is because I have provided my evidence and I felt I have been neglected by the AAT
This is not a proper ground of review but merely a submission or statement of dissatisfaction with the Tribunal’s decision and may be understood as not more than her emphatic disagreement with it. The court has no jurisdiction to undertake a merits review of the decision.
Ground 1 identifies no jurisdictional error on the part of the Tribunal. To the extent that the applicant contends the Tribunal ought to have come to a different factual conclusion on the basis of the evidence she provided, this complaint in substance seeks impermissible merits review.[18]
[18] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
Ground 1 does not raise an arguable case for review.
Ground 2
Ground 2 reads:
I am requesting due to I am not satisfied with the translation from the interpreter
The ground of review is not informed by any particulars.
The applicant has not taken the opportunity extended to her to file any amended application, further affidavit or outline of submissions. She does not explain why she was dissatisfied with the quality of interpretative services that were provide or how this may have had any impact upon her ability to participate in the hearing. Nor has she filed any evidence that identifies any deficiencies in the standard of translation provided by the interpreter at the Tribunal hearing. The applicant said nothing as to this issue before me.
The Tribunal noted that the applicant had appeared at a hearing before it on 11 January 2018 via video link and been assisted by an interpreter in the Malay and English languages: [12]. Nothing in the materials suggests that the applicant received inadequate translation or was otherwise denied a real or meaningful opportunity to participate in the hearing or to present arguments and evidence in support of her claims.
The Tribunal’s findings of fact in relation to the applicant’s claims and evidence were open on the materials before it.
In considering the applicant’s claim for economic hardship (and noting that a threat to subsistence as referred to in s 5J(5)(d) must be at a level that challenges the ability of the individual to continue to exist or remain in being, and the hardship must be such that it would actually threaten the applicant’s capacity to subsist),[19] the Tribunal’s findings that the applicant’s circumstances did not satisfy s 5J(4)(b) were open. Such findings flowed logically from the Tribunal’s assessment of the material before it. There is nothing in the Reasons or otherwise in the materials comprising the court book to indicate any irrationality or illogicality in the Tribunal’s decision or approach.
[19]SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143, [11]; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725, [23]; MZYPB v Minister for Immigration and Citizenship [2012] FMCA 226, [13].
Ground 2 does not raise an arguable case for review.
Conclusion
As the applicant was self-represented, I have re-examined the decision and materials in the court book.
I see no jurisdictional error in the Tribunal referring to its findings of fact in relation to an applicant’s refugee claims when assessing them under the complementary protection provisions.[20] Nothing else in the Tribunal’s decision indicates an arguable basis for judicial review.
[20]SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, [54]-[56]; MZYXS v Minister for Immigration and Citizenship [2013] FCA 614, [31].
For the reasons set out above, I am not satisfied that the applicant has demonstrated in the material that there is an arguable basis for judicial review of the Tribunal’s decision or that it is otherwise appropriate for the court to hear full argument in the matter. Moreover, in the exercise of the residual discretion which is conferred in respect to the determination of a show cause application, I am not satisfied that any basis is shown why this application should be permitted to go forward. The application for reinstatement should be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 24 October 2019
[7] [2018] FCA 1110, [29] (Tracey J).
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