Atx16 v Minister for Immigration

[2020] FCCA 167

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATX16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 167

Catchwords:
MIGRATION – Immigration Assessment Authority – application in a case for reinstatement – whether there was a deliberate failure by the applicant not to appear – whether the grounds in the amended application have reasonable prospects of success – no utility in setting aside the Court’s orders – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Applicant: ATX16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 155 of 2016

Judgment of: Judge Street

Hearing date: 30 January 2020

Date of Last Submission: 30 January 2020

Delivered at: Perth

Delivered on: 30 January 2020

REPRESENTATION

Counsel for the Applicant: Mr G McIntyre SC

Solicitors for the Applicant: D’Angelo Legal

Solicitors for the Respondents: Ms A Ladhams
AGS

ORDERS

1. The application in a case filed on 14 January 2020 is dismissed.

2. The applicant pay the first respondent’s further costs in the sum of $600.00.

DATE OF ORDER: 30 January 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 155 of 2016

ATX16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed on 14 January 2020 for reinstatement of proceedings pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) in respect of orders made by the Court on 11 November 2019 dismissing the proceedings under r 13.03C(1)(c) of the Rules. On that occasion, leave was granted to Mr Draper solicitor on behalf of the applicant to withdraw and an adjournment application was dismissed.

2. The application in a case filed on 14 January 2020 was supported by an affidavit of Mr Draper dated 14 January 2020 which explained the circumstances as to his failure to appear on what was a reinstatement application in a case filed on 11 December 2019 and fixed for hearing on 17 December 2019.

3. The Court accepts Mr Draper’s explanation as to his failure to appear on 17 December 2019. Notwithstanding the submission in respect of the delay in the making of the further application for reinstatement, the Court would have readily accepted Mr Draper’s explanation as being satisfactory in the context of proceedings where no other order had been made dismissing the proceedings for a failure to appear.

4. In the context of considering the present application, the Court has to consider the utility in setting aside the order that was made in default of appearance on 11 November 2019.

5. No criticism is made of Mr Draper in that regard. Rather, it is the failure of the applicant to have appeared on 11 November 2019 when the proceedings were dismissed that requires consideration as to the lack of utility of the Court setting aside the order in the present case. The Court would have to further be satisfied that it was appropriate to set aside the order made on 11 November 2019.

6. A transcript was tendered of the hearing on 11 November 2019 was tendered at the hearing on 17 December 2019 and marked Exhibit 2 and was then marked as Exhibit 3 at the hearing on 30 January 2020 of the reinstatement application filed on 14 January 2020. It is apparent from the transcript that the applicant had sent an email to Mr Draper saying “I can’t afford this money. It is a very short time. And can I have more time, please?”. The email reflects that the applicant had received the email notification of the hearing on 11 November 2019 and was, accordingly, aware of the hearing date on 11 November 2019. The email also reflects a deliberate decision, given the failure to attend on 11 November 2019, of the applicant not to fund his lawyer and not to appear in Perth.

7. Mr McIntyre SC of counsel on behalf of the applicant submitted that the Court should not draw the conclusion that the applicant deliberately failed to appear on 11 November 2019. In that regard, Mr McIntyre identified that the applicant was in Melbourne and there is a reference to his inability to provide funds to his solicitor.

8. No affidavit evidence has been put on to support the contention that the applicant was unable to afford the plane fare to attend Perth. The reference to being unable or unwilling to provide funds to the lawyer does not explain why the applicant did not appear in circumstances where the applicant must have known that his lawyer would not be appearing on his behalf and that he had a hearing date before this Court.

9. Mr McIntyre referred to the short time in respect of the hearing date. That short time was in the context of circumstances where Mr Draper appeared on 23 October 2019 when the matter was fixed for final hearing.

10. Mr McIntyre referred to the history of the proceedings commenced on 6 April 2016 and the fact that, at one stage, the matter had been advanced before Judge Lucev and the applicant had an expectation of obtaining final appealable orders.

11. On 12 July 2019, Judge Lucev made orders adjourning the matter to a directions hearing to be fixed following delivery of the High Court’s decision in BVD17 v Minister for Immigration & Border Protection & Anor (S46 of 2019).

12. On 11 October 2019, this Court made orders listing the matter for directions on 23 October 2019 and providing liberty to apply on two days’ notice.

13. On 23 October 2019, Mr Draper appeared for the applicant and Ms Ladhams appeared for the first respondent. This Court made orders for the matter to be reheard by another Judge of the Court, permitting the transcripts and evidence that had been admitted at the earlier hearing to be treated as evidence before the Court at the rehearing and fixed the matter for hearing at 9.30 am on 11 November 2019.

14. Given that the proceedings were commenced in 2016 and the above history, there was an obvious requirement in the interests of the administration of justice for the proceedings to be brought on promptly. The prompt bringing on of the proceedings for final hearing does not give rise to reasons why the applicant, in deliberately failing to attend the hearing on 11 November 2019, should be taken to have a basis upon which this Court should exercise the power under r 16.05(2)(a) of the Rules to reinstate the proceedings.

15. Accordingly, the Court finds that there was a deliberate failure by the applicant not to appear on 11 November 2019. The Court is satisfied for this reason alone that it this is not an appropriate matter in which to exercise the Court’s powers under r 16.05(2)(a) of the Rules.

16. Even if the Court were to turn to the merits of the underlying application in respect of which grounds 1 and 2 of the amended application, which were submitted by Mr McIntyre as identifying arguable cases on the merits that warranted the reinstatement of the proceedings, the Court accepts the argument of the first respondent that those grounds, at an impressionistic level, lack sufficient prospect of success to give rise to any utility in setting aside the default order made.

17. In relation to ground 1, insofar as it seeks to agitate the adverse finding in respect of relocation to Lahore, the Authority in its reasons expressly referred to the applicant’s particular circumstances in considering the practicality and reasonableness of relocation and expressly took into account, contrary to the submissions advanced on behalf of the applicant, the employment opportunities for the applicant as well as the applicant’s skills. Ground 1 at an impressionistic level has no reasonable prospect of success.

18. In relation to ground 2, it alleges a failure by the Authority to take into account the most recent country information either in determining the issue in respect of reasonable relocation or in respect of whether there was a well-founded fear of persecution. Ground 2 is, in substance, an endeavour to invite the Court to engage in merits review. It is a matter for the Authority what country information it takes into account. It is apparent that the Authority gave extensive and comprehensive reasons in support of the adverse findings. In these circumstances, at this impressionistic level, the Authority’s reasons cannot be said to lack an evident and intelligible justification for the adverse findings. Ground 2 has no reasonable prospect of success.

19. Accordingly, there is no sufficiently arguable case on the merits to warrant a reinstatement of the proceedings, even if the Court were to disregard the deliberate failure by the applicant to attend the hearing.

20. In these circumstances, there is no utility in setting aside the orders made on 11 November 2019. Accordingly, the application in a case filed on 14 January 2020 is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 30 January 2020 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  13 March 2020