AUL16 v Minister for Immigration

[2016] FCCA 2059

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUL16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2059

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

Legislation:

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

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

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

Applicant: AUL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 827 of 2016

Judgment of: Judge Manousaridis

Hearing date: 27 July 2016

Delivered at: Sydney

Delivered on: 27 July 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Mr D McLaren of Minter Ellison  

ORDERS

1. The application in a case filed on 16 June 2016 is dismissed.

2. The applicant pay the first respondent’s costs of the application referred to in order 1 set in the amount of $1,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 827 of 2016

AUL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 6 April 2015 the applicant filed an application in this Court for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa). 

2. The application was listed for a first court date before a Registrar of this Court at 10.15 am on 19 May 2016. At that time and date, the applicant did not appear, and a Registrar of the Court made an order, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), dismissing the application for judicial review. On 16 June 2016 the applicant filed an application in a case seeking an order that the orders made on 19 May 2016 be set aside pursuant to r.16.05(2)(a) of the FCC Rules. Before I consider that application, it will be useful to set out the principles that should guide me in determining that application.

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

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

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

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

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

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

4. In an affidavit filed by the applicant in support of his application in a case, the applicant provides an explanation for his not appearing before the Court on 19 May 2016.  He there deposes that he “could not attend court as I was sick”.  There was no medical certificate annexed to the affidavit that would support the applicant’s statement that he was sick. 

5. At the hearing before me, the applicant did tender medical records.  Those records, however, referred to treatment the applicant received in April and in July 2016.  They did not relate to any medical treatment or any medical condition the applicant suffered from on 19 May 2016.  However, the applicant said from the bar table, and later confirmed what he said in the witness box, that the reason he did not attend Court on 19 May 2016 was because he was ill in bed and his lawyer had not informed the applicant of the first court date. 

6. The applicant gave evidence that he retained a lawyer who prepared and lodged the application for judicial review.  In support of that and in response to a question from me as to whether the applicant had any evidence of paying money to the lawyer, the applicant called up on his mobile phone what appeared to be a copy of a receipt issued by lawyers.  In addition, the affidavit which the applicant filed together with his application appears to be witnessed by a lawyer. 

7. The applicant, in his affidavit of 16 June 2016, did not depose to his not having been made aware of the first court date.  The reason he gave why that was so is that his affidavit of 16 June 2016 was prepared by his lawyer, but the lawyer did not explain the affidavit and did not interpret it to the applicant, and moreover, when the applicant asked for his lawyer to explain and interpret the affidavit, the applicant says his lawyer said he was too busy to do that.  I find that evidence to be highly implausible.

8. I am inclined, however, to, and I do, accept for the purposes of this application that the applicant did engage a lawyer, and the applicant was not informed of the first court date. That finding is based on the fact that the applicant apparently was in possession of receipts in relation to moneys paid to a lawyer, and that the applicant’s affidavits, by which I also include the one he made on 16 June 2016, appear to be witnessed by a lawyer.  Another consideration is that there would appear to be no rational reason why the applicant would not have attended Court on 19 May 2016, given the potential consequences of his not appearing.  For all these reasons, therefore, I am satisfied that the applicant has given a reasonable explanation for his not appearing at the first court date. 

9. I then move to consider whether, if I were to set aside the orders made on 19 May 2016, the applicant would have reasonable prospects of success on the claims which he makes in his application.  That requires me to set out the claims for protection the applicant made, and the reasons for which the Tribunal did not accept those claims. 

10. The applicant is a citizen of India, and is a Sikh.  He entered Australia on his former wife’s student visa on 21 November 2008.  The applicant and his wife divorced in November 2010, and the applicant lodged an application for a Protection visa on 2 May 2014.  In the statement attached to the applicant’s application for a Protection visa, the applicant claimed to have arrived in Australia with his wife on a student visa in November 2008.  Following their arrival, the applicant and his wife began experiencing irreconcilable differences.  They constantly argued, and the applicant’s wife demanded money all the time.  Their relationship broke down.  The applicant’s wife demanded a divorce after meeting another man. In support of her wish, the applicant’s wife told her parents that the applicant was “abusing her” and “forcing her to get [a] divorce”. 

11. The applicant and his wife divorced in 2010.  After their divorce, the applicant’s former wife’s family were “very angry and threatened to kill” the applicant because they believed that he had been the one who had wanted and filed for the divorce.  They believed that their daughter, as a divorcee, was stigmatised and vowed to take revenge on the applicant.  The applicant’s former wife’s family began to harass the applicant and his family in India.  As a result, the applicant’s parents and brother fear for the applicant’s safety, and have asked that he not return to India, knowing the ferocity of his former wife’s family. 

12. Before the delegate, the applicant claimed that his former wife’s family was threatening him by asking for money.  When asked why he had not included this claim in his application for protection, the applicant said that he had told his agent about it.  It was put to the applicant that the statement attached to his application indicated a different reason for the threats that was not related to money matters, namely, he was being threatened because of a belief that he had instigated divorce proceedings. 

13. The applicant also claimed to have started receiving threatening telephone calls in early April 2014.  The caller would threaten to harm the applicant by “breaking his arms and legs”.  The applicant changed his telephone number in July 2014 after the caller threatened his family and the applicant took the calls seriously. 

14. Before the Tribunal, the applicant gave evidence that included the following:

    a)He did not know his wife’s present whereabouts because he had not contacted his wife for six or seven years. 

    b)The applicant’s parents are elderly. 

    c)His father is retired, and the applicant’s brother, who is studying, lives with the applicant’s parents. 

    d)The applicant’s former in-laws had sent “unknown” people to visit his family in India to demand money from his parents. 

15. When asked for details about the amounts that were demanded of his parents the applicant said that all of his family’s property would not be enough.  The applicant said his former wife’s family were demanding money because they were greedy, and they needed to raise another dowry to help his former wife marry.  In answer to the Tribunal’s question whether the applicant’s family had contacted authorities, the applicant initially said there would be no point because police in India are corrupt and would demand money before intervening.  He later said, however, that his family had lodged a complaint, but the police had taken no action. 

16. The Tribunal accepted that the applicant was married in 2008 and that he and his former wife were divorced in 2010.  The Tribunal, however, found the applicant was not a credible witness, and that his claims relating to his former wife’s family making unreasonable demands and threatening the applicant and his family were unsupported.  The Tribunal relied on a number of matters. 

17. First, the applicant’s evidence was internally inconsistent, so the Tribunal found, in relation to when the applicant’s former wife’s family began threatening the applicant and how they did that.  The Tribunal noted that even if the applicant’s claims were transcribed incorrectly or inadequately at an early stage, this did not alleviate inconsistencies in the applicant’s evidence to the Tribunal. 

18. Second, the Tribunal found it implausible that “unknown” people would be assigned to extract money from the applicant’s family, threatening violence repeatedly and undiminishingly over a period of several years with no variation in pattern despite the situation remaining unchanged.  The Tribunal noted that the “unknown people” had not acted upon the threats made despite the applicant’s family’s “passive refusal” to meet the demands of them.  The Tribunal also found it implausible that the applicant, despite being demanded money over several years, was unable to provide to the Tribunal any specific amount that he was asked for. 

19. Third, the Tribunal found that the applicant was vague, inconsistent, and unable to provide a clear answer when asked whether his family had ever reported the threats to the police.  Fourth, the Tribunal was not satisfied that the threats to the applicant claimed were made by his in-laws were threats that were related to any convention reason. 

20. The Tribunal, therefore, did not accept that the applicant or his family have ever been threatened by or on behalf of his former wife’s family, or that the applicant and his family have been subject to demands for money or property, or that the applicant’s divorce precipitated a set of circumstances that give rise to a real chance of being persecuted in India in the reasonably foreseeable future. The Tribunal concluded that the applicant was not a person in respect of whom Australia had protection obligations either under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth).

21. I then turn to the grounds of application contained in the application the applicant filed.  It contains four grounds of review.  The first is:

    The Tribunal made a procedural error by not taking into account information relevant to the applicant’s particular circumstances.  

22. This ground, as with all other grounds, was interpreted to the applicant before the hearing.  During the hearing I read out the ground which, of course, was interpreted, and I invited the applicant, who is not legally represented, to make submissions in relation to the ground.  The applicant submitted that he had no future at home and that he feared persecution in India and that that was the reason he did not wish to go back to India after having lived in Australia for eight years.  I asked the applicant whether he could identify the information which the ground claims was relevant but which the Tribunal is said not to have taken into account, and, perhaps understandably, the applicant was unable to do that.  What the applicant submitted to me discloses no arguable case of jurisdictional error.  It only repeats the claim for protection which he presented to the Tribunal and which the Tribunal did not accept.

23. The ground, as stated in the application, does not identify the information it is claimed the Tribunal failed to take into account, nor, as I have said, was the applicant able to identify such information; and there is nothing in the reasons of the Tribunal or in the material that is before me that identifies any information which is arguably relevant and which the Tribunal failed to take into account.  Ground 1, therefore, as stated in the application, would have no prospects of success if I were to set aside the orders of 19 May 2016. 

24. The second ground stated in the application for review is as follows: is:

    The failure to understand or take into account the applicant’s claims that his life is at risk and continue to be risky manifest ignorance and lack of knowledge of the realities in life in India. 

25. When invited after this ground was interpreted to make submissions in relation to this ground, the applicant said that he has been staying away from India for so many years because he feared persecution, and that he was scared to return and that he was scared to visit his family in India, and he was just seeking justice.  Again, this raises no arguable case for judicial review and does not relate to the ground as stated.

26. As for the ground as stated, it is premised on the Tribunal having failed to understand or take into account the applicant’s claims that his life was and continues to be at risk.  The applicant would have no prospect of succeeding on this ground.  The Tribunal’s reasons demonstrate the Tribunal questioned the applicant about his claims, understood the answers the applicant gave to those questions, and considered the evidence the applicant gave.  It was not satisfied for reasons on which it was open to it to rely that the applicant’s claims were true, and it is for that reason it was not satisfied the applicant faced any risk of harm if he were to return to India.  Given there is no arguable case, as I have found, that the Tribunal did not understand the applicant’s claims, there can be no arguable case the Tribunal manifested ignorance or lack of knowledge of the realities of life in India, because it was not necessary for the Tribunal to consider those matters.

27. The third ground is:

    The Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in India was illogical or irrational, manifested a misunderstanding or misconstruction of the convention test or arose out of a failure to take relevant information into account, decision lacks objectivity and reasoning.

28. After this ground was interpreted to the applicant, and the applicant was invited to make submissions, he submitted that he has no future in India, and that his life is in danger, and that his wife is present in Australia.  He also said that he feels safe in Australia and that if he returns home he will be terrified. 

29. This does not raise any arguable case of jurisdictional error and does not in terms respond or deal with the third ground.  That ground, as stated, does not identify the respects in which it is claimed the Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in India is illogical or irrational, nor does it identify the Convention test it is claimed the Tribunal misunderstood, or the matters on which the ground relies for claiming the Tribunal misunderstood the Convention test.  Ground 3, therefore, would not be arguable if I were to set aside the orders of 19 May 2016.

30. I then turn to the fourth ground, which is as follows:

    The applicant was not afforded natural justice.  The applicant felt unheard of when most of his evidence is disregarded as unacceptable.  The applicant says the honourable Tribunal member held preconceived conclusions as to the applicant’s presentation of facts and evidence.

31. After this ground was interpreted to the applicant and the applicant was invited to make submissions, the applicant said that he wished that his matter be remitted for another hearing.  When I asked him why I should do that the applicant said that his lawyer did not properly represent him.  As I understood what the applicant said, he submitted that all of the documents that had been prepared on his behalf by his lawyer had not been interpreted to him or explained to him and that he did not have any idea what the lawyer had prepared.

32. That does not reflect ground 4 as stated in the application.  It, in truth, raises a distinct ground.  Even though the ground is not stated in the application, I will nevertheless deal with the question of whether it raises an arguable case of jurisdictional error by the Tribunal. 

33. In my opinion, it does not raise an arguable case of jurisdictional error.  Assuming the claim is true – that is to say, the applicant or the written material that was submitted by the applicant’s lawyer was not interpreted to the applicant and the applicant was not aware of what had been included in such documents.

34. The only document that seems to have been prepared on behalf of the applicant is the statement that accompanied his application for a Protection visa.  The claims there stated are, at the least, consistent with the claims that the Tribunal understood the applicant advanced at the hearing.  The decision of the Tribunal indicates that the applicant was given the opportunity and the applicant took the opportunity to state his case.  There is nothing in the Tribunal’s reasons to suggest that the Tribunal considered or relied on any inconsistency between what the applicant said to the Tribunal and what the applicant stated in his written statement, which accompanied his application for a protection visa. Further, there is nothing to suggest that the applicant had suggested to the Tribunal that documents that had been prepared on his behalf were prepared without his knowledge. In these circumstances, it cannot be said that there would be arguable case that his lawyer’s failure to inform the applicant of what was in documents that had been prepared on his behalf but would result in the decision being set aside for jurisdictional error. 

35. In my opinion, the applicant would also not have an arguable prospect of persuading a court on judicial review that his lawyer prepared documents without the knowledge of the applicant. First, the decision record of the delegate records the following:[2]

    The applicant was asked if his application and claims were true and correct and he said, “Yes.”  The applicant was asked if he wanted to make any changes, additional or deletions to his application or claims and he said, “No.”

    [2] CB105

1. Secondly, the applicant made no complaint to the Tribunal that documents had been submitted on his behalf without his knowing their contents. 

2. I therefore return to ground 4 as stated in the application.  That ground does not identify the matters on which it relies for claiming the applicant was not afforded natural justice.  The Tribunal’s reasons for decision indicate that the Tribunal put to the applicant matters that were of concern to the Tribunal.  It is true the Tribunal did not accept most of the applicant’s evidence but that does not mean the Tribunal disregarded that evidence.  It regarded the applicant’s evidence but did not accept it for reasons that were reasonably open to it.  It is not reasonably arguable from that fact that the Tribunal approached the application that was before it with any predetermined view or preconceived views about the matter.  The Tribunal identified the applicant’s claims.  As I have said, the Tribunal asked the applicant questions about those claims and for reasons which were reasonably open to the Tribunal to rely on, the Tribunal did not accept the applicant’s evidence.

3. Ground 4, therefore, as stated in the application, has no reasonable prospects of success and it is, in my view, not arguable. 

4. I finally return to the affidavit the applicant filed in support of his application for judicial review.  In that affidavit the applicant deposes:

   I believe my application was not given due consideration at both instances and there were errors in the decision.

5. The applicant, after this paragraph was interpreted, could not identify the errors to which the paragraph deposes.  The applicant also repeated what was in the affidavit and that is that the Tribunal did not give this case proper consideration. 

6. This discloses no arguable case of jurisdictional error. As I have already concluded, the Tribunal did consider the applicant’s claims and, for reasons which were open to it, rejected them. 

7. For all these reasons, I am of the opinion that the Court should not set aside the orders that were made by the Registrar on 19 May 2016.    Accordingly, I propose that the application in a case, filed on 16 June 2016, be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 10 August 2016