AZL15 v Minister for Immigration

[2016] FCCA 1495

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1495

Catchwords:
MIGRATION – Judicial review – application for reinstatement – no arguable case.

Legislation:

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

Migration Act 1958 (Cth)

Cases cited:

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

MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066

Applicant: AZL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1310 of 2015

Judgment of: Judge Harland

Hearing date: 14 June 2016

Date of Last Submission: 14 June 2016

Delivered at: Melbourne

Delivered on: 21 June 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Hornsby

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for reinstatement filed 10 March 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $1,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1310 of 2015

AZL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for reinstatement by the applicant with respect to his application for judicial review filed on 10 June 2015. This case was originally listed for hearing on 2 March 2016 at 2.15pm before me, and that is reflected in the directions made by Registrar Burns on 14 October 2015. The Court advised the parties by letter dated 3 February 2016 that the hearing date had changed to 1 March 2016 at 11.30am before me. The applicant did not attend the Court on 1 March 2016, and accordingly his case was dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Court has the power to set aside its orders made in the absence of a party pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth). It is a discretionary matter for the Court. Ryan J set out principles applying to reinstatement applications in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]:

   In circumstances where, as in the present case, 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. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

   The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.

3. That is a useful summary of the principles.  There are three issues the Court must consider when exercising its discretion.

4. The applicant attended Court in person and had the assistance of an interpreter.  The applicant confirmed that he received the respondents written submissions which were sent to him by letter on 23 February 2016. However he had not read them.  After explaining the limited nature of the hearing before this Court and the aspects of the Court’s discretion in matters of these types, I stood the matter down to enable the applicant to have the interpreter translate the written submissions to him.

Applicant’s non-attendance at the hearing

1. In the applicant’s affidavit, he refers to and includes with his affidavit the orders made by Registrar Burns referring to the Court date of 2 March 2016. He also encloses the notice of listing sent by the Registrar referring to 2 March 2016.  The applicant says that he attended court on 2 March at 2.15pm and was told by the registry that his case had been listed the day before and the case had been dismissed in his absence.

2. The Court sent a listing notice advising of a change of listing from 2 March 2016 to 1 March 2016. The notice of change of listing was dated 23 February 2016. The address the Court sent the notice of the new listing date is 1/25 Burrows Avenue, Dandenong, Victoria, 3175.  That is the same address that the Minister sent his written submissions together with a covering letter referring to the new date on 23 February 2016.  When I first asked the applicant about that address, he said that was an old address and that he had since moved and told the Court.  His application in a case filed on 21 March 2016 gives his address as 32 Dalgety Street, Dandenong.

3. When questioned further, the applicant indicated that he was living at his old address in February but says he did not receive the letter from the Court.  He conceded that he did receive the letter from the solicitors for the Minister but did not take notice of the covering letter referring to the new date because he does not read English well.  He sought and obtained some assistance from the Asylum Seeker Resource Centre in preparing the application in a case and says he showed them the document from the Minister’s solicitors but they did not assist him with that.

4. The Minister’s submissions are that the applicant’s explanation is unsatisfactory given that he was living at that address at the time.  If that was the only issue for me to determine, and particularly given the fact that the application concerns review of a refusal to grant a protection visa, I would be inclined to give the applicant the benefit of the doubt and reinstate his case.  However, that is not the only consideration. 

Prejudice to the Minister. 

1. The Minister did not seek to argue any prejudice and therefore it is not necessary to address that matter further. 

Reasonable Prospects of Success

1. As I indicated to the applicant, the main issue in the circumstances of this case is the third aspect of my discretion, and that is whether or not the applicant has a reasonably arguable prospect of success on the substantive application.  I acknowledge that it is difficult for lay people, and particularly lay people who rely on interpreters, to understand the Court process in migration matters, given the technical nature of the law.

2. Despite attempting to explain the relevant issues and the nature of the Court process in simple terms, it is not possible for the Court to even the playing field, so to speak.  When the hearing resumed, the applicant said that he did not know how to argue that the Tribunal made a mistake and therefore he would say that there was no mistake.  I invited the Minister’s solicitor to speak to his written submissions and attempt to further demonstrate to the applicant the relevant issues.  The Minister’s submissions fairly summarise the nature of the applicant’s claims and the Tribunal’s decision.

3. These submissions were prepared for the final hearing and therefore fully address those issues.  I will not repeat the background of the applicant’s case.  I accept the Minister’s submissions that the Tribunal provided detailed reasons for its decision and provided a detailed summary of the applicant’s case and its reasons for rejecting the applicant’s claims.

4. The Tribunal’s decision runs to 209 paragraphs.  It is clear from the court book that the Tribunal complied with the procedural fairness requirements under Part VII of the Migration Act 1958 (Cth). The applicant was invited to attend hearing before the Tribunal and did so. The Tribunal put adverse information to the applicant at the hearing and gave him the opportunity to respond to that adverse information.

5. The Tribunal made adverse credibility findings against the applicant.  That is a matter that is in the sole domain of the Tribunal and is not a matter for this Court.  By way of background, I note that the applicant has had some experience in the Tribunal process previously as he made an application for judicial review after the first Tribunal affirmed a delegate’s decision to refuse his visa application.  Judge Burchardt remitted his case to the Tribunal after finding that the first Tribunal had failed to consider the applicant’s complementary protection claims.

6. The second differently constituted Tribunal considered the applicant’s claims with respect to complementary protection and found that, having considered his claims and the independent country information, that he was not owed complementary protection.  The applicant had some assistance of a migration agent prior to the hearing before the Tribunal, and that agent had made written submissions before the hearing.  Having considered the Tribunal’s decision, I am satisfied that the Tribunal did not make jurisdictional error.

7. The applicant has been unable to show that he has a reasonably arguable case.  Therefore, there would be nothing to be achieved in reinstating his application. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 21 June 2016