Azb15 v Minister for Immigration

[2018] FCCA 1076

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZB15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1076

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

PRACTICE & PROCEDURE – Application to reinstate proceeding dismissed summarily for non-attendance – relevant considerations.

Legislation:

Migration Act 1958, ss.36, 425, 426A, 474, 477

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Federal Circuit Court Rules 2001, rr.13.03C, 16.05

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: AZB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1555 of 2015

Judgment of: Judge Cameron

Hearing date: 9 March 2018

Date of Last Submission: 9 March 2018

Delivered at: Sydney

Delivered on: 9 March 2018

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms K. Underwood of Minter Ellison

ORDERS

1. The applicant’s application in a case filed 10 January 2018 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $1,400.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1555 of 2015

AZB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINSITRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, who is a citizen of India, commenced proceedings in this Court by an application filed on 9 June 2015 in which he sought judicial review of a decision made by the Refugee Review Tribunal, a predecessor of the second respondent (“Tribunal”), affirming a decision made by a delegate of the first respondent (“Minister”) to refuse him a visa.

2. The applicant’s application was listed for its first court date on 2 July 2015. The applicant appeared on the first court date at which time the matter was listed for callover on 17 December 2015. On 11 November 2015 the Court wrote to the parties to advise that the callover date had been vacated and that the matter would be listed for callover in due course. On 17 October 2017 the Court wrote to the parties to advise that the matter was listed for callover on 11 December 2017. There was no appearance by the applicant on that occasion and on the application of the Minister the proceeding was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”).

3. These reasons concern an application in a case filed by the applicant pursuant to r.16.05 of the Rules seeking to set aside the orders of 11 December 2017 on the basis that they were made in his absence. In deciding whether to grant that application, consideration must be given to whether the applicant’s explanation for his non-attendance on 11 December 2017 is a satisfactory one and whether, nevertheless, his application of judicial review has reasonable prospects of success.

SATISFACTORY EXPLANATION

1. I turn first to whether the applicant has provided a satisfactory explanation for his non-attendance at the call over date.  

2. In his address to the Court, the applicant said that he had been ill on the date of the hearing.  Because the applicant declined to be cross-examined on that statement I give it no weight. In his affidavit filed in support of his application to set aside the dismissal of 11 December 2017, the applicant deposed that he had not received any correspondence from the Court, or the respondents’ solicitors, to advise him of the callover date.  Because the applicant would not be cross-examined on that affidavit, I give it no weight. 

3. I did advise the applicant that given his disinclination to give oral evidence, I would disregard what he told me from the bar table and would not give any weight to what he said in his affidavit, with the consequence that there would be nothing before the Court to explain why he did not attend court on 11 December 2017.  Notwithstanding that advice, the applicant was content to proceed on the basis that the Court had no material before it from which it could determine whether he had a satisfactory explanation for his failure to attend court on 11 December 2017.

4. I find that a satisfactory explanation has not been provided. 

REASONABLE PROSPECTS OF SUCCESS

1. In any event, an application to reinstate a proceeding in the present circumstances would not be granted unless the applicant had reasonable prospects of success on the principal application.   In the absence of such prospects, the substantive application would be liable to be dismissed.  

2. It should be noted in this regard that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error, as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, an applicant in the present circumstances must demonstrate reasonable prospects of proving that the Tribunal’s decision is affected by jurisdictional error.

3. For reasons which will be discussed in detail later, I am not of the view that the applicant’s application for substantive relief in the form of constitutional writs has reasonable prospects of success. 

Background facts

1. The applicant is a citizen of India who last arrived in Australia on 19 December 2010. On 7 November 2013, he lodged a valid application for a protection visa with what is now the Department of Home Affairs alleging that he feared persecution in India from Brahmin leaders. On 21 May 2014 the applicant’s application was refused by a delegate of the Minister. The applicant then applied to the Tribunal for a review of that departmental decision. He was unsuccessful before the Tribunal and in his application of 9 June 2015 sought judicial review of the Tribunal’s decision with this Court: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The applicant’s claims for protection were summarised by the tribunal in the following terms:

   …

   ·   He [had] experienced a lot of pain and mental harm in India.

   ·     He and his family first suffered mistreatment by Brahman leaders in 2005. They lodged a police complaint but nothing happened. [The Tribunal noted that he  did not specify his religion or ethnicity in his application form]

   ·     The applicant stopped going to College after he was beaten a couple of times while going there on his bike. He also stopped going to Temple.

   ·     He was repeatedly threatened and even beaten badly before he left for Australia for the first time, and he lodged a formal report with the local police station, but no action was taken against the leaders or their thugs. He and his family have no trust or faith in the local government or police authorities.

   ·     The local Brahman leaders keep thugs who will create an awkward situation that will end up in an argument and finally a fight.

   ·     His parents have suffered since he left India. He had decided to leave for India, but his parents informed him that the situation is worse. He is scared that he may be killed if he returned to India; Brahman and their supporters will mistreat him if he returns to India. He will be followed by the thugs “again” and he will be mistreated by the Brahman leaders’ thugs who forced people not to socialise with any other caste and religion in the city.

   ·     Brahman leaders control the town and the police are bribed by them. The local police authorities are corrupt and run by the local politicians. The Brahmans have had control over the city since the leadership of a Brahman leader as a Member of Parliament in Assembly. All the main leaders in local politics are Brahmans who have links with wealthy Brahman leaders in the community…

   ·     He left India to flee mistreatment from Brahman Hindu Group in his city.

   …

The Tribunal’s decisions and reasons

1. On 10 February 2015 the Tribunal wrote to the applicant pursuant to s.425 of the Act to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 11 March 2015 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his application without further notice. No response was received from the applicant and he did not attend the Tribunal hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.

2. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that the applicant is not a person to whom Australia has protection obligations under ss.36(2)(a) or 36(2)(a) of the Act. The Tribunal based its conclusion on the following findings and reasons:

   a)the Tribunal considered that the applicant had been put on notice by the delegate’s decision record that a number of unanswered questions arose from his claims.  The Tribunal noted a lack of information about several matters referred to in his claims, including:

   i)who had threatened him, noting that the applicant had only referred to a Brahman Hindu group;

   ii)the applicant’s religion or ethnicity or whether he was part of the Brahman Hindu group himself;

   iii)the reason he was beaten at College and by whom; and

   iv)why he believed he would be followed by thugs or be killed.

   b)the Tribunal noted that the applicant had not provided any explanation as to why he had continued to live in the same home in India for three years after the point when, he claimed, he first feared harm;

   c)the Tribunal was concerned that despite his claim that his problems in India commenced in 2005, the applicant returned to India for a period of two and a half months between October 2010 and December 2010.  The Tribunal considered this trip to contradict his claim that he left India to “flee mistreatment” in his home city; and

   d)the Tribunal was also concerned that the applicant first attempted to lodge a protection visa application in June 2013, which was found to be invalid, notwithstanding that his last student visa expired on 30 September 2011.The Tribunal considered this delay of almost two years to indicate, in the absence of any further application, that the applicant did not have a genuine fear of harm and had not previously suffered harm in India.

3. The Tribunal found that insufficient information had been provided for it to be satisfied that the applicant’s claims were credible. The Tribunal concluded that the applicant did not meet the refugee criterion in s.36(2)(a) or that there was substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to India, there was a real risk he would suffer significant harm for the purposes of s.36(2)(aa).

Application for an extension of time

1. An additional complication matter in this case is that the proceeding was commenced out of time. The Tribunal’s decision in relation to the applicant was dated 13 March 2015 but this proceeding was only commenced on 9 June 2015. Pursuant to s.477 of the Act the applicant had had until 17 April 2015 to commence this proceeding.

2. At the time of the Tribunal’s decision s.477 of the Act relevantly provided:

   477 Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)     In this section:

   date of the migration decision means:

   …

   (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …

Application in writing citing reasons

1. The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether an application has been made to the Court for an extension of time.

2. The application commencing this proceeding contained an application for an extension of time, albeit in the wrong part of the application, which set out the basis on which the applicant said that an extension of time would be in the interests of the administration of justice.  In the initiating application under the heading Grounds of Application, rather than under the heading Grounds of Application for an Extension of Time, the applicant pleaded:

   The applicant claimed he did not receive any letter from RRT and he called on 29/05/2015.  They said that they sent letter and he also checked with local post office that you receive any parcel, but they didn’t receive from RRT. 

3. The initial criteria for the granting of an extension of time have therefore been satisfied. 

Interests of the administration of justice

1. The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time. In the circumstances of this case, that question will be determined by whether the applicant has provided a satisfactory explanation for his delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at a trial.

Satisfactory explanation for delay

1. As already noted, the applicant alleged in his application that he had not received correspondence from the Tribunal advising him of the fact that it had made its decision.  The applicant repeated that allegation in his submissions from the bar table today.  The issue whether the application had been commenced late arose late in the hearing of the present application in a case and quite some time after the exchange referred to earlier concerning whether the applicant would give oral evidence as to the reasons for failing to attend on 11 December 2017. 

2. In the circumstances I draw no adverse inference from the fact that the applicant did not give oral evidence on this particular issue.  I am prepared to accept that the quoted allegation is factually correct and that, in fact, the applicant was unaware of the Tribunal decision until it was too late for him to file his application timeously.

3. Nevertheless, I am not satisfied that the substantive application, for judicial review, has sufficient merit that it should be considered at a final hearing.

Application for judicial review

1. In his initiating application, the applicant made the following allegations:

   1.The Tribunal made jurisdictional error without looking facts.

   2.They overlooked the documents which I provided to satisfy the members of RRT.

   3.Applicant claim if he will return he will be killed by Brahman leader.

   4.Applicant claim if he badly beaten by Brahman leader [sic].

   5.Applicant claim he satisfies s.36(2)(a).

2. Paragraph 6 of the application set out the applicant’s allegation as to why it would be in the interests of the administration of justice to extend the time for the commencement of the proceeding. This has already been considered.

CONSIDERATION

1. None of the allegations is particularised and so they lack meaningful substance.  This is a matter of particular moment in connection with the first ground of the application.  Although the applicant alleges that the Tribunal failed to look at all the facts, he has not identified which facts before the Tribunal were not considered.  This is a significant failure on the applicant’s part given that it appears that the Tribunal’s consideration of his claims was thorough and detailed.  It does not seem to me that the first ground of the application raises any serious argument of jurisdictional error on the Tribunal’s part.

2. The lack of particularisation is similarly significant in relation to the second ground of the application.  In circumstances where the applicant failed to attend the Tribunal hearing, it is difficult to understand which documents he refers to in the second ground of the application.  Had the allegation been particularised, that issue might have been clear, however, on the material before the Court, there is no basis to suspect that any documents before the Tribunal were not considered by it.

3. The third, fourth and fifth grounds of the application go to the merits of that application and to whether the applicant ought to have been granted a protection visa.  As noted earlier in these reasons, it is not within the Court’s power to determine whether a person is entitled to a visa and the Court cannot undertake a review of the merits of a visa application.  As a result, the third, fourth and fifth grounds for the application raise no matters which would suggest jurisdictional error on the part of the Tribunal. 

4. Consequently, I am not satisfied that the application for judicial review merits consideration at a final hearing.

Conclusion

1. For the reasons given I do not consider that it would be in the interests of the administration of justice that time be extended for the commencement of this proceeding were the order made on 11 December 2017 to be set aside. 

2. As time for the commencement of this proceeding would not be extended, even if the orders of 11 December 2017 were to be set aside, the applicant’s application for substantive relief does not have reasonable prospects of success.  As the applicant has also failed to provide a satisfactory explanation for his failure to attend Court on 11 December 2017 the application to set aside the orders made on that occasion will therefore be dismissed. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 1 May 2018