ATU15 v Minister for Immigration
[2020] FCCA 1647
•22 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATU15 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1647 |
| Catchwords: PRACTICE & PROCEDURE – Application in a case to reinstate – whether there is satisfactory explanation for non-appearance – whether the first respondent would be prejudiced – whether the substantive application has reasonable prospects of success to warrant reinstatement in the interests of justice – no arguable case of legal error arises – grounds lack merit – application refused. |
| Legislation: Migration Act 1958 (Cth), s.476 Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 |
| Cases cited: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385 Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 |
| Applicant: | ATU15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1339 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 9 June 2020 |
| Date of Last Submission: | 3 June 2020 and 9 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2020 |
REPRESENTATION
| Applicant: | In Person (by video-link) |
| Solicitors for the Respondents: | Sparke Helmore |
| Legal Representative for the Respondents: | Ms Monica Perotti and Ms Katherine Evans |
ORDERS
The title of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application in a case made on 27 April 2020 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $1200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1339 of 2015
| ATU15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an Application in a Case (“AIC”) made on 27 April 2020 to reinstate an application made to this Court on 18 May 2015 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 24 April 2015 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a Protection (Class XA) visa to the applicant (“the visa”).
The evidence before the Court is as follows:
1Letter dated 20 June 2017 from the Minister’s solicitors to the applicant (“RE1”)
2A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE2”).
3Letter dated 3 August 2017 from the Minister’s solicitors to the applicant (“RE3”).
4The affidavit of the applicant made on 24 April 2020 (filed on 27 April 2020) annexing a signed copy of “Short Minutes of Order” dated 11 June 2015, with a hand written note at the top of the document stating: “Final hearing: 16 June 2017 @ 10:15am at 80 William Street, Judge Nicholas [sic]”.
Background
The applicant was found by the delegate and the Tribunal to be a citizen of Sri Lanka who arrived in Australia as an “irregular maritime arrival” on 28 June 2012 (CB 1 – CB 15 and CB 33 – CB 34). The applicant’s application for the visa was made to the Minister’s department on 16 January 2013. He was assisted by a registered migration agent (CB 16). The applicant attached various supporting documents and a written statement outlining his claims to fear harm (CB 17 – CB 99).
By letter dated 19 August 2013, the applicant was invited to attend, and subsequently did attend, an interview with the delegate on 4 September 2013 (CB 105 – CB 106 and see CB 115.3). By letter dated 18 February 2014, the delegate notified the applicant of the refusal of his visa application (CB 108 – CB 130).
The applicant applied for review to the Tribunal on 13 March 2014 (CB 131 – CB 133). By letter dated 2 January 2015 and sent by email to the applicant’s representative who had been authorised to receive correspondence on the applicant’s behalf, the applicant was invited to attend a hearing before the Tribunal, which was subsequently rescheduled as the applicant had moved interstate (CB 139 – CB 151). Prior to the hearing on 13 February 2015, the applicant’s representative sent an email to the Tribunal containing the applicant’s submissions in relation to his application (CB 156 – CB 184).
The applicant attended the hearing on 13 February 2015 and provided the Tribunal with further documents at the hearing (CB 185 – CB 196). By letter dated 24 April 2015 and sent by email to the applicant’s authorised representative, the Tribunal notified the applicant that it had affirmed the decision of the delegate to refuse a visa to the applicant (CB 197 – CB 209).
Before the Court
The applicant first appeared before a Registrar of this Court on 11 June 2015 where orders were made, by consent, for the facilitation of the filing of documents. The applicant had leave to file and serve an amended application giving complete particulars of each ground of review. No further amended application was filed by the applicant. The applicant and the first respondent were also given the opportunity to file and serve written submissions and list of authorities 14 days and 7 days, respectively, prior to the hearing. No written submissions have been filed by the applicant.
At a mention before the Registrar on 4 February 2016 orders were made, by consent, setting the matter down for final hearing at 10:15am on 16 June 2017. The applicant and first respondent were again given the opportunity to file and serve written submissions 14 days and 7 days, respectively, prior to the hearing. The Minister filed written submissions on 9 June 2017, but nothing further was filed by the applicant.
On 13 June 2017 the parties were notified that the hearing listed on 16 June 2017 had been vacated, and that the parties would be advised of a new date as soon as possible. A letter was sent by the Court to the parties (separately) by express post, and a copy of this letter with the express post tracking numbers was also emailed to the parties. The letter and email were sent to the applicant’s email address and postal address as set out in his originating application.
The parties were sent a letter by express post on 20 June 2017 advising them that the matter had been relisted for hearing at 10:15am on 31 July 2017. The letter was again sent to the applicant’s address for service as set out in his originating application.
On 31 July 2017 the application was dismissed for non-appearance by the applicant pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
The applicant did not apply to reinstate his case until he filed the AIC on 27 April 2020. The applicant was at the time, and currently remains, in immigration detention.
The AIC was listed for directions on 4 May 2020. The applicant appeared by telephone and was assisted by an interpreter in the Tamil language. At directions, the applicant said he was looking for a lawyer, but had not yet found one. The applicant said that up until then, he had received “help from my friend”. The AIC was set down for hearing at 10:15am on 3 June 2020.
At the hearing on 3 June 2020 attempts were made to conduct the hearing by way of the Microsoft Teams facility. The applicant was at the Villawood Immigration Detention Centre (“VIDC”).
However, it became apparent that despite previous attempts to confirm the efficacy of this facility at the VIDC, the applicant had difficulty in hearing what was being said due to background noise and an echo in transmission. The hearing was adjourned to 9 June 2020.
The hearing resumed on that day with the use of audio-visual link videoconferencing technology. The applicant appeared from the VIDC via that medium. He was assisted by an interpreter in the Tamil language who was present in Court (COVID-19 protocols were observed). The Minister was represented by a solicitor.
The Application in a Case to Reinstate
The AIC to reinstate filed on 27 April 2020 contains no grounds. It notes that the application is supported by an affidavit of the applicant dated 24 April 2020, and seeks the following order:
“1. My case need to be sent back to AAT.”
[Errors in the Original.]
At the hearing I explained to the applicant that the circumstances of his AIC required consideration of at least three issues. These were:
(1)Whether there is now a reasonable explanation for the failure to attend before the Court on 31 July 2017.
(2)The reason for the significant delay in seeking reinstatement of the substantive application.
(3)Whether the substantive application, which is the subject of the application to reinstate, has reasonable prospects of success or any arguable legal issue such as to warrant reinstatement.
The issue raised for consideration is whether the order made by the Court on 31 July 2017 should be set aside. I understood the AIC to invite the Court to proceed pursuant to r.16.05(2)(a) of the FCC Rules. Relevantly, r.16.05(2)(a) is in the following terms:
“(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party;…”
The relief sought by the applicant now is discretionary. Such exercise of discretion must be done reasonably, and with some caution, given the competing interests. On the one hand sits the public interest in the finality of litigation. On the other, the interests of the administration of justice. In particular whether, taking into consideration all of the relevant circumstances presented, there is a real dispute to be heard in the substantive application such that the interests of justice require it to be heard (Autodesk Inc v Dyason (No 2) [1993] HCA 6 per Gaudron J at [1] and [18]).
The Applicant’s Evidence
The applicant was cross-examined on his affidavit. What emerged from his evidence was that he went to the Court on 16 June 2017 (at the time of the first scheduled hearing of the substantive application) and was told by “lawyers” outside the Court that his hearing was not to proceed on that day. He did not receive any correspondence from the Court as to a new hearing date.
He confirmed that his residential address at the time was the address he had given in his substantive application to the Court.
His evidence was that he did not receive the letter of 20 June 2017 (RE1) advising of the new hearing date.
The applicant also gave evidence that he “assumed” that he received the Minister’s letter of 3 August 2017 (RE3) which advised of the orders made by the Court on 31 July 2017, including the order dismissing the application for non-appearance. This is because he recalls receiving some letter in 2017. However he did not receive any letter from the Court.
His evidence was also that he did not know his case had been dismissed. He maintained this position even when it was put to him that this was not true given the contents of the letter he said he assumed he had received.
His evidence was also that “Border Force” told him in October 2017 that his application had been dismissed. His explanation as to why he did not seek the reinstatement at that time, but waited two years and eight months to do so, was that no one told him he could “appeal”.
The applicant’s evidence was that he was told that he was required to return to his country. Subsequently in his evidence he said that he was told this by “Border Force” or his “case officer” in October 2017. Later in his evidence he stated that he was told this by an “agent” who also told him that “your country” does not want to accept you.
In cross examination the applicant was specifically asked what steps he then took from July or October 2017, to find out what possible Court proceedings were available to him. His answer was that this was difficult given that he was in detention, including that he did not have money to obtain a lawyer.
Nonetheless, it was also his evidence that he made attempts to consult “free lawyers” at that time, but that none would assist him. He took no further action. He “left it” (enquiries as to what legal steps were available, for example, reinstatement of the substantive application) until a “friend” told him in 2020 that he could seek reinstatement.
The Applicant’s Submissions
The applicant repeated some of his evidence in his submissions. In particular he emphasised that when he was told that “his country” would not accept him, he was told by his case officer that this was because he was stateless.
Subsequently in his submissions in reply the applicant stated that he did not have the citizenship of any country. He was born in Tamil Nadu in India and was the son of Sri Lankan “refugees”. He has an Indian birth certificate, but thought he was a Sri Lankan citizen because that was his father’s nationality.
Consideration: Non-Appearance and Delay
The evidence before the Court is that the applicant was sent, from the Court, by express post, a letter dated 20 June 2017 advising him of the time, date, and place of the postponed hearing of his substantive application (RE1). That is, the hearing was rescheduled for 31 July 2017.
The applicant’s evidence that he attended Court on 16 June 2017, and was told by “lawyers” that his hearing had been rescheduled, reveals that he knew at the relevant time that the hearing of his substantive application would still occur, albeit at some future time.
The applicant has provided no satisfactory explanation as to why he says he did not receive the Court’s letter (RE1) notifying him of the “new” hearing date scheduled for 31 July 2017. That letter was sent by express post to the address he had provided as his address for service. His evidence was that in 2017 that was his residential address. He said he lived there with a friend.
The letter, as is usual with express post, had a unique identifying number. There is nothing on the Court’s file to indicate, nor did the applicant provide any evidence, that the letter was undeliverable, or that it was returned to sender.
That letter is dated 20 June 2017. That is four days after, on the applicant’s own evidence, that he was told by lawyers that his hearing had been postponed to another date. It is reasonable to expect that in the circumstances the applicant, who on his own evidence was expecting some communication from the Court, would have kept a proper lookout for any relevant correspondence sent to the address for service he had provided, and which was also his residential address, which on his evidence he shared with a friend.
In all the circumstances, and in the absence of any plausible explanation to the contrary, I find that the applicant did have notice of the hearing scheduled for 31 July 2017, and that there is therefore no reasonable explanation for his failure to attend Court on that day.
The applicant gave contradictory evidence as to when he said he first knew of the Court’s order dismissing his substantive application. On the one hand he said that he probably received the Minister’s letter of 3 August 2017 (RE3) which notified him of the dismissal of his application, but then also said that when he first knew of the dismissal was when he was told about it in October 2017.
While the applicant’s evidence was not clear as to whether a Border Force Officer or his agent told him, and his submission was that it was his case officer, what remains is that on the applicant’s own evidence, he knew of the Court’s orders as at October 2017.
The relevant part of the Minister’s letter is in simple and plain terms (see item 2 on the first page of the letter – RE3). I find that the applicant was put on notice of the dismissal in early August 2017 by the Minister’s letter which he did not deny that he received.
In any event, even if the time of notification was to be taken as being in October 2017, this still leaves a substantial period until April 2020 when he made his application for reinstatement.
The applicant’s evidence, and submission, that he did not make his application for reinstatement as he did not know of the opportunity to do so until April 2020, does not provide a satisfactory explanation for his delay of well over two and a half years since October 2017. His evidence was also that he did speak to “lawyers”, in late 2017, who would not help him because they would not assist him without payment. His evidence was that he then did nothing until April 2020.
The applicant’s evidence that he was told by his case officer (in October 2017) that he could not “appeal” is inconsistent with his evidence that he nonetheless attempted to arrange legal assistance to address the dismissal of his substantive application. There was no evidence or submission from the applicant that he was told by the lawyers that there was no action he could take to address the dismissal of his substantive application.
Ultimately the applicant’s unexplained inaction since that time, for over two and a half years, when he knew, on his evidence, of the Court’s order, leads to the finding that he has failed to provide a satisfactory explanation for the delay in seeking reinstatement.
Merits of the Grounds of the Substantive Application to the Court
However, the most important reason for refusing the reinstatement is that the applicant’s grounds of the substantive application lack such merit as to warrant reinstatement in the interests of justice.
The substantive application to the Court contains two unparticularised grounds:
“1. That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.
2. More details will be provided by the legal representative.”
The applicant claimed to fear harm on the basis of his Tamil ethnicity, an imputed political opinion as a supporter of the Eelam National Democratic Liberation Front (“the ENDLF”), and the son of an active ENDLF supporter, and as a member of the particular social groups, young Tamils without family connections, young Tamil Sri Lankans who have never been to Sri Lanka and failed Tamil asylum seekers ([16] at CB 203).
The Tribunal accepted that the applicant may be imputed with a pro-ENDLF political opinion as he had grown up in an Indian refugee camp known for having ENDLF members. Given the applicant’s “poor knowledge” of the ENDLF, the Tribunal reasoned that it was unlikely that his father was a “leader” of the ENDLF but only had “ordinary membership” ([18] at CB 203).
The Tribunal had regard to country information from various sources and found that “[t]here were no references in those documents to the targeting of ENDLF members or family members of ENDLF members” ([20] at CB 204, and [19] – [25] at CB 203 to CB 205 generally). In the circumstances, the Tribunal caused inquiries to be made to look for further information in this regard, and the Tribunal noted that “[n]o information was found” ([20] at CB 204).
The Tribunal noted that the ENDLF was also not named on the Sri Lankan government’s list of “Proscribed Terrorist Groups”, and further inferred from the lack of information about the ENDLF that: “…they [were] not currently an active group and [were] not a group being targeted by the Sri Lankan authorities” ([23] – [24] at CB 205).
The Tribunal also rejected the claim that the deaths of the applicant’s uncle and aunt was evidence that ENDLF members were being targeted. This was in the absence of other country information to support this claim and in light of the time of their return to Sri Lanka ([26] at CB 205).
The Tribunal found that the applicant’s fear of harm by reason of imputed political opinion because of the claim that his father was an active ENDLF member and the applicant growing up in an ENDLF refugee camp, was not well-founded ([27] at CB 205).
In relation to the particular social group, young Tamil males without family connections, the Tribunal found that although he did not have close family members in Sri Lanka, he did have relatives there, and thus rejected the claim that he had no family connections at all in Sri Lanka. He was found not to be a member of that group as he had claimed ([28] – [29] at CB 204 to CB 205).
The Tribunal found that the applicant did not have any relevant “risk profile”, and therefore did not face a serious risk of harm due to his Tamil ethnicity or as a family member of a person who was a member of the ENDLF ([30] at CB 206).
The Tribunal considered whether the applicant faced a real chance of harm in light of his being a failed asylum seeker. The Tribunal found that the applicant did not fall within the group of returning failed asylum seekers who departed illegally, therefore, the Tribunal considered that he would face the standard procedures for a returnee who had not departed illegally. It found that this would not amount to a real chance of harm ([31] – [32] at CB 206 to CB 207).
Finally, the Tribunal considered whether the applicant faced a real chance of harm as he was a young Tamil who had never lived in Sri Lanka. Based on available country information, the Tribunal found there was no evidence that this group was targeted for harm. The Tribunal therefore did not accept that he would be targeted for being a Tamil who had never lived in Sri Lanka. It further noted that there would be many others in the applicant’s position ([33] – [34] at CB 207 to CB 208). For the same reasons, the Tribunal found that the applicant did not meet the complementary protection criterion ([36] – [39] at CB 208).
Ground one of the substantive application makes a general assertion that the Tribunal’s decision was affected by legal error. No particulars have been provided. Before the Court the applicant said nothing that would even indicate legal error on the part of the Tribunal. In any event, I cannot see that any legal error arises from the Tribunal’s decision record and in light of the material before it.
The applicant attended a hearing before the Tribunal. His migration agent was present. There is no transcript of the Tribunal hearing in evidence before the Court. There is nothing to indicate that the issues dispositive of the review were not known to the applicant as live issues as a result of the delegate’s decision, or on the available evidence, what was discussed at the Tribunal hearing.
The Tribunal considered each of the applicant’s claims to fear harm as they arose from the materials before it. There is nothing to show that the Tribunal overlooked or misunderstood any of his claims. There is no jurisdictional error indicated by ground one. No arguable case of legal error arises.
Ground two asserts that more details will be provided by the applicant’s legal representative. The applicant provided no evidence as to the circumstances of the preparation of his substantive application. Nor did he provide any explanation by way of submissions. There is nothing to indicate whether the applicant had spoken to, or engaged, a lawyer, in 2015 (the time of the making of the substantive application) to assist him in providing “more details”.
Nor is there any evidence, or explanation by way of submission, as to any attempts the applicant may have made between the making of his substantive application on 18 May 2015 and June 2017, the date of the scheduled hearing of his substantive application of which, on the applicant’s own evidence, he had notice.
In any event, there is no right to legal representation in matters of this type (AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [51] per Flick, Griffiths and Perry JJ, Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20, SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702, see at [4] and Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50, see at [17]).
Of immediate relevance however, is that there is nothing in ground two of the substantive application to indicate any possible jurisdictional error in the Tribunal’s decision. As such ground two cannot be said to raise any arguable case to warrant reinstatement of the substantive application.
Nor is any such arguable case otherwise indicated on the evidence before the Court. As set out above, the applicant was given a meaningful opportunity of a hearing before the Tribunal to address the issues in the review and make his arguments. There is nothing to indicate that the Tribunal failed to consider, in the requisite sense, any claim to fear harm made by the applicant. Its findings, which informed its ultimate conclusion, were all reasonably open to it on what was before it.
In all, the grounds of the substantive application do not raise any arguable case such as to warrant reinstatement of the application in the interests of justice.
A Further Matter
As set out above, the applicant told the Court that he now believed that he was stateless. In effect, he asked the Court to assist him, in particular, in obtaining a bridging visa for the purpose of being released from immigration detention. There are two matters that arise from this.
First, I did consider whether the applicant’s submission now (and his oral evidence) that he was “always” stateless, could indicate or reveal some argument that the Tribunal’s decision was affected by jurisdictional error.
However, on the evidence before the Court, it is the case that the applicant, who was represented by a registered migration agent both in his application for the visa, and before the Tribunal, consistently maintained that he was a citizen of Sri Lanka. There is nothing in the evidence before the Court to indicate that either the applicant, or his representative, told the delegate or the Tribunal that he was stateless or that there was any indication that that could be the case. (See item 10 at CB 3, item 20 at CB 33, [1] at CB 47, CB 112 and CB 114, and [2] at CB 157).
The Tribunal considered the question of the applicant’s nationality in its decision record. It noted (at [2], CB 201) that the applicant claimed to be a citizen of Sri Lanka. It considered his claims to fear harm as against Sri Lanka as the applicant had consistently claimed (also see [11] at CB 202). I agree with the Minister that in the circumstances there is no indication of legal error in this regard on the part of the Tribunal.
Second, as set out above, the applicant has been in detention for over two and a half years. The applicant now says he considers himself to be stateless.
However, to the extent that this belief was said, on his evidence, to emanate from what he was told by someone in 2017, still leaves the question as to whether the applicant is in fact stateless. If indeed this is the case, then this is a matter that I would respectfully ask the Minister, or those who advise him on these matters, to consider as to whether the applicant’s continued detention is appropriate. Further, if the applicant is not to be removed from Australia, whether the continued indefinite detention is lawful.
In this regard I asked the Minister’s solicitor who appeared for the Minister at the hearing, to raise this matter with those who instruct her in the Minister’s department, and to have this issue agitated in the Minister’s department.
Conclusion
The applicant has not provided a satisfactory or reasonable explanation for his non-appearance before the Court on the date scheduled for the hearing of his substantive application. Nor has the applicant provided any reasonable or satisfactory explanation for the lengthy and significant delay in making his application for reinstatement after, on his own evidence, he knew of the dismissal of the substantive application.
However, of greatest weight is that the grounds of the substantive application lack merit so as to argue for the reinstatement in the interests of justice. Nor, for the reasons set out above, does the applicant’s claimed statelessness indicate jurisdictional error in the Tribunal’s decision. In the circumstances it is appropriate to dismiss the application to reinstate. I will make that order.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 22 June 2020
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