BAL17 v Minister for Immigration

[2017] FCCA 3152

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAL17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3152

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions –Application for Review of a decision of registrar – where registrar dismissed application to reinstate application previously dismissed for want of appearance – where reasonable explanation given for the failure to appear – where principal application for review has little prospects of success.

Legislation:

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

Migration Act 1958 (Cth), s.438

Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

First Applicant: BAL17

Second Applicant: BAM17

Third Applicant: BAN17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 225 of 2017

Judgment of: Judge Jarrett

Hearing date: 4 December 2017

Date of Last Submission: 4 December 2017

Delivered at: Brisbane

Delivered on: 4 December 2017

REPRESENTATION

The Applicants appeared in person

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entering a submitting appearance

ORDERS

1. The application filed on 6 November 2017 be dismissed.

2. The applicants to pay the first respondent’s costs of and incidental to the application fixed in the sum of $1,476.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 225 of 2017

BAL 17

First Applicant

BAM17

Second Applicant

BAN17

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 10 October, 2017 a registrar of this Court refused an application that had been filed on 29 August, 2017 by the first, second and third applicants.  In that application they sought the reinstatement of an application for review that they had filed seeking the review of a decision of the Administrative Appeals Tribunal.  That principal application was filed on 10 March, 2017.  That application sought to challenge a decision of the Administrative Appeals Tribunal which affirmed the decision of the first respondent to refuse the applicants’ protection (class XA) visas.

2. The principal application for review does not specify any grounds of review at all.  That part of the form is blank.  And so whilst an application had been filed, an application for review was not, in my view, properly commenced because there were no proper grounds of review specified in it.  Whether that is a correct legal view or not does not much matter because when the application came on its first court date on 28 August, 2017 – the applicants did not appear. 

3. At the first court date, the first respondent sought the dismissal of the application and a registrar dismissed it pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. As I have already indicated, the following day, the applicants filed an application for reinstatement of that proceeding, but having had the application dismissed, it became incumbent upon the applicants to demonstrate a number of matters because reinstatement of their application is a discretionary matter. The discretion resides in r.16.05(2)(a) of the Rules.

4. There are a number of matters that are traditionally seen to inform the exercise of the discretion to reinstate an application that has been dismissed for want of a party’s appearance.  Those matters are well stated in the authorities but generally consist of the following.  First, whether there is an explanation, reasonable or otherwise, for the party’s non-appearance.  Second, whether there has been any delay and the extent of any delay in making the application for reinstatement.  Third, any prejudice that might be said to flow to the respondent if the application was to be reinstated and, finally, the merits of the proposed application that is sought to be reinstated. 

5. I can deal with two of those matters very quickly.  First, there is no delay between the dismissal of the proceedings and the application for reinstatement.  The application for reinstatement was made the very next day.  Second, it is not suggested by the first respondent – quite properly – that there is any prejudice to the first respondent or, indeed, the second respondent if the application was to be reinstated. 

6. As to the question of explanation for the non-appearance, there is affidavit material before me – although not formally identified by the applicants – but to which I have had regard.  There are affidavits filed by the applicants – or one or other of them on 29 August, 2017 6 October, 2017 6 November, 2017 and 15 November, 2017.  There is also an affidavit by a person employed in the office of the solicitors who act for the first respondent – it was filed on 8 September, 2017.  The last of the affidavits filed by the applicants’ deals with material which is not strictly relevant at all.  It does not deal with the question of explanation for delay but seeks to introduce new material and matters concerning events that have occurred since the Tribunal’s hearing.  I have paid no regard to those matters. 

7. The applicants say that they did not appear on the first court date because they were confused about the date.  Their confusion is understandable.  They received correspondence nominating 29 June, 2017 as the date for the first court date.  There was some telephone interchange between the second applicant and the witness Faron, wherein Ms Faron told the second applicant that the correct court date was 28 August, 2017.  There was subsequent correspondence that confirmed that.  The applicants, however, got their own advice from, presumably, a lawyer, but the information received from that lawyer by way of email again misstated the correct date for the first court date.  The second applicant said that she remained confused about the appropriate date and she thought that it was 29 August.  That would explain their appearance here on 29 August at the registry. 

8. I accept that there is an explanation for their failure to appear on 28 August.  I accept that, in the circumstances, their failure is reasonable.  The next question to be considered is the question of merit. 

9. The Full Court has made it plain that an application such as this is not an occasion for there to be a detailed consideration of the proposed grounds of review and a determination about whether they are meritorious.  The task is to be undertaken at a relatively impressionistic level, according to the Full Court, with a view to forming a generalised view about the merit of the application. 

10. Here, the Tribunal’s decision records that there are three applicants:  a husband, a wife and their child.  They have applied for protection visas, their initial application having been refused by a delegate of the first respondent on 21 September, 2016. 

11. The applicants claimed to be the Tribunal to be citizens of India and they made the following claims which supported their application for the visa.  The two adult applicants made the same claims and they were made, as I apprehend the Tribunal’s reasons, in the same document.  They claimed that the husband is a Christian and has grown up in a strict Christian household in India.  He claimed that he promoted Christianity in India.  His wife was formerly a Muslim and she converted to Christianity.  They married in April of 2012. 

12. They claimed that the wife’s family are strict Muslims and they, along with other strict Muslims from their mosque, have vowed to kill both the husband and the wife in these proceedings as well as their child.  They claim that the wife’s family or her brother or somebody related to her as well as others associated with her family’s mosque have attacked the first applicant’s family and made the threats against the applicants in this case.  The applicants claimed to the Tribunal that since their arrival in Australia, Muslim terrorists in the area where they live have taken up the matter and they have undertaken to kill the applicants in order to punish them and set an example to the rest of the community. 

13. They claim that the threat to kill the wife in this case was made because she converted from Islam to Christianity and because she married a non-Muslim man.  They claimed that the threat to kill the husband was because he influenced the wife to convert to Christianity and their child is considered to be the son of the devil.  The applicants’ application to the Tribunal was not able to be dealt with by the Tribunal on the papers and the Tribunal invited the applicants to attend a hearing.  There was a hearing at which the applicants attended and at which they gave evidence. 

14. The Tribunal records, in paragraph 22 of its reasons for decision, the material and evidence that it had before it. There was a certificate and notification regarding the disclosure of certain information under s.438 of the Migration Act. The reason given for why disclosure of that information was subject to the certificate was that it would be contrary to the public interest if that information was revealed because it contained “an internal working document and business affairs”. The Tribunal recorded that the folios concerned contained purely administrative material including the department’s disclosure decision checklist and the department’s applicant checklist.

15. The Tribunal’s reasons reveal that it considered the validity of the s.438 certificate on the basis that a public interest reason had not been identified in that certificate and it found that the certificate was invalid. The significance of all of that lies in two decisions ­­– MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 and Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305, two recent decisions of the Full Court of the Federal Court of Australia. The Tribunal recorded that the folios the subject of the invalid certificate had not been considered relevant to the review conducted by the Tribunal because they were purely administrative matters and, as such, the Tribunal advised the applicants of the existence of the certificate and its finding that it was invalid.

16. It was appropriate for counsel for the first respondent to raise those matters with the Court having regard to the cases to which I have just mentioned – or that I have just mentioned – and subsequent decisions of both this Court and the Federal Court about how matters such as this ought be approached. The approach here by the Tribunal is consistent with the authorities now dealing with an invalid s.438 certificate. There is no error of approach demonstrated by the Tribunal in that respect.

17. The Tribunal sets out in its reasons – in its lengthy and considered reasons – a consideration of the applicant’s claims.  The Tribunal began to summarise its findings about those claims at paragraph 55.  The Tribunal said this at paragraph 56:

    56.    While it has some doubts about the applicant’s credibility, the Tribunal is prepared to accept that Applicant 2 converted from Islam to Christianity and married the applicant - married Applicant 1 in 2012.  The Tribunal is also prepared to accept that the stepbrother of Applicant 2 and his associates from their mosque who Applicant 2 also believes were associated with congress party, attacked their family home and have threated to kill the applicants in the future if the applicants return to their home town [the home town is set out in the reasons]. 

    57.    The Tribunal accepts that the applicants face a real chance of serious harm at the hands of Applicant 2’s stepbrother and his associates in the reasonably foreseeable future in their home area.  The Tribunal also accepts that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India they face a real risk of significant harm at the hands of the stepbrother of Applicant 2 and his associates in their home town.

18. Those two paragraphs constitute findings by the Tribunal that Australia owes these applicants protection obligations generally speaking.  That there was a finding that the applicants faced a real risk of serious harm should they be returned to India might generally be seen as engaging Australia’s protection obligations.

19. The position has been modified in the Migration Act such that it can be said that an obligation of protection does not arise where the Tribunal or the decision maker can be satisfied that it is appropriate for applicants for protection to relocate within their country of origin. The Tribunal set out the law in relation to that matter in its reasons and the appendices to it and there is nothing to suggest that the Tribunal’s directions to itself as to the appropriate law were incorrect.

20. The Tribunal considered, or commenced to consider the question of relocation within India at about paragraph 57 of its reasons.  It made some general observations about India, the nature and extent of its population and the likelihood there would be in the applicants being located should they be returned to India.  Specifically in paragraph 58, the Tribunal says this:

    The Tribunal finds that country information does not support that the stepbrother of Applicant 2 or anyone else would be able to find the applicants in the rest of India, especially given information about the lack of central registries for housing, rentals and schools and the difficulties that even police have in tracking down individuals.

21. In paragraph 59 the Tribunal made other observations about the applicants’ circumstances, the length of time since the last attack on the applicants’ family home and it considered some of the evidence of the applicants.  At paragraph 61 the Tribunal said:

    The applicants can read, speak and write Malayalam and English, both of which are spoken by millions of people in a number of states.  The applicants appeared to be able-bodied and they both have considerable education and employment histories.  Independent country information indicates that unemployment is low in India and the country is experiencing substantial economic growth.  The Tribunal does not accept that the applicants could not move to another part of India and that they could not obtain employment which would be sufficient to support themselves. 

    The Tribunal notes that the applicants have been resourceful in travelling to Australia and establishing themselves in a foreign country, and finding employment to support themselves.  The Tribunal is satisfied that the applicants could relocate and find employment in India.

22. The Tribunal then goes on to consider the question of the applicants’ religion and the effect that that might have on their employment prospects. 

23. The Tribunal considered, in paragraph 63, the information relating to the second applicant’s conversion from Islam to Christianity.  The Tribunal noted the applicants’ arguments about the discrimination that they might face and the discrimination that their son might face.  The Tribunal referred to country information and, in particular, the 2015 UK Home Office report Country Information and Guidance – India:  Religious Minority Groups and took that into consideration.  In paragraph 67, the Tribunal then said this:

    67.    Considering the independent country information and their individual circumstances, the Tribunal finds that it would be reasonable for the applicants to relocate to an area of the country where there would not be a real chance they will suffer serious harm.  As such, the Tribunal is not satisfied, in accordance with section 5J(1)(c), that the real chance of persecution relates to all areas within India and, therefore, the Tribunal is not satisfied that the applicants’ fear of persecution is well-founded.

    68.    Considering the independent country information and their individual circumstances, the Tribunal also finds that it would be reasonable for the applicants to relocate to an area of the country where there would not be a real risk that the applicants will suffer significant harm and that section 36(2B)(a) applies in this case.  Accordingly, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm.

24. The task of the Tribunal is to make findings of fact based on the evidence presented to it and the other information available to it to assess the applicants’ claims.  That is precisely what the Tribunal has done in this case.  Rather than rejecting the applicants’ claims that they faced a real risk of significant or serious harm should they return to India, the Tribunal’s reasons demonstrate that it accepted those claims and made findings that they were at real risk.  I have referred to that earlier in these reasons.

25. But the Tribunal was required to determine whether those risks existed throughout the whole of India. The Tribunal turned its mind to that and as its reasons demonstrate, it took into account a range of information that was available to it. Not just what the applicants said, because the Tribunal is not obliged to uncritically accept all of the claims made by applicants, but also the independent country information available to it. The Tribunal carried out its task by making findings about the matters in respect of which findings needed to be made under the Migration Act.

26. Ultimately, it made findings which were against the applicants’ interests and it affirmed the decision under review.  The applicants have been unable to identify any particular error in the Tribunal’s decision other than to say that the Tribunal did not accept some of their claims.  As I have attempted to demonstrate by referring to the Tribunal’s reasons, in fact the Tribunal accepted most of the claims made by the applicants but, applying the law and the other information that it had available to it, it formed the view that they could avoid those risks by relocating.

27. There is no legal error in the Tribunal’s decision.  The Tribunal has correctly instructed itself as to the law and ultimately the findings of fact that it makes are matters entirely for it.  The review that the applicants seek in this case appears to be merits review rather than a review for jurisdictional error. 

28. During the course of their argument, the applicants referred to some other matters that might be said to affect their case.  The first is that there were other difficulties associated with relocating within India because their relationship or their marriage was an inter-caste marriage.  Having regard to the Tribunal’s reasons, it seems that such a claim was not made before the Tribunal.  There does not seem to have been any suggestion that their marriage was an inter-caste marriage, which caused its own particular difficulties and which would have prevented them from living in India.  The second matter was one of language.  It was said that there are many languages throughout India and the applicants here only speak two.  The Tribunal was alive to that and referred to those languages in its reasons.  It cannot be said that the Tribunal did not consider that matter.

29. Finally, it was suggested that there were translation errors.  The first applicant was unable to identify any particular errors.  His assertion was that there were difficulties with the translation generally at the Tribunal hearing.  The second applicant was able to be a little more specific and suggested that, by reason of the translation or translating happening by way of telephone, there was some disadvantage to the applicants, although the applicants were unable to identify any particular disadvantage.

30. As to those matters, there should be two general observations made.  The first is it is not a jurisdictional error, nor is it procedurally unfair for an interpreter to be utilised via the telephone.  Second, no particular instance of misinterpretation was suggested.  There is nothing to suggest that the applicants were prejudiced by any inability to properly interpret by reason either of the skill of the interpreter or the means by which the communication was being made.

1. Finally, as I have attempted to point out, much of the applicants’ claims were accepted by the Tribunal and so it is difficult to see how a mistranslation, if indeed there was one, has affected the outcome of the proceedings. 

2. In those circumstances, at a generally impressionistic level, it is difficult to see how the applicants can establish that the Tribunal’s decision is affected by jurisdictional error.  None is apparent on the face of the Tribunal’s reasons.  The reasons are logical, coherent and detailed. 

3. In those circumstances, even though the applicants have established that there was a reasonable excuse for them failing to appear on the first court date, it seems to me inappropriate to reinstate the application because I cannot be satisfied that it is sufficiently meritorious to warrant that course. 

4. This is an application for review from a decision of a registrar.  It is an application that is heard de novo.  But in circumstances where the registrar’s orders are that the application for reinstatement be dismissed, no other order is necessary on my part, other than to dismiss the application for review that was filed by the applicants on 6 November, 2017.

   RECORDED:  NOT TRANSCRIBED

5. In this jurisdiction costs ordinarily follow the event.  The application has been dismissed.  Ordinarily, there would be an order that the applicants pay the first respondent’s costs for the application.  The usual rule is subject to some exceptions, the most usual being that there are special circumstances attending the particular case that mean that it is inappropriate to apply the general rule.  Here the applicants say that they have an inability to afford an order for costs, that they are financially struggling and have bills to pay and a child to raise. 

6. But impecuniosity is never generally seen as special circumstances sufficient to displace the usual rule.  Costs should follow the event. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 4 December, 2017.

Date: 14 December 2017