BDE18 v Minister for Immigration
[2019] FCCA 3129
•1 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDE18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3129 |
| Catchwords: MIGRATION – Immigration Assessment Authority – protection (class XA) visa – reinstatement application – reasonable grounds for failure to attend hearing – consideration of applicant’s prospects of success – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05. |
| Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 |
| Applicant: | BDE18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 579 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 25 October 2019 |
| Date of Last Submission: | 25 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 1 November 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondents: | Mr Simpson |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The applicant’s application in a case filed 16 May 2019 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 579 of 2018
| BDE18 |
Applicant
and
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application in a case filed by the applicant on 17 May 2019 seeking the reinstatement of an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (“IAA”) made on 14 February 2018, which affirmed a decision of a delegate of the Minister for Home Affairs (“the Minister”) refusing to grant the applicant a safe haven enterprise (subclass XE 790) visa.
The applicant’s application for judicial review was listed before Registrar Burns on 6 February 2019. On that date, the applicant failed to appear and his application was dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).[1]
[1] Orders made by Registrar Burns on 6 February 2019.
Rule 16.05 of the FCC Rules relevantly provides:
(3)The Court or a Registrar may vary or set aside a judgement or order after it has been entered if:
(a)it was made in the absence of a party…
The applicant gave evidence that he forgot to attend the directions hearing on 6 February2019 as a consequence of mental health issues which affect his memory.[2]
[2] Applicant’s affidavit affirmed 15 and filed 17 May 2019 page 2 at paragraph [5].
In support of this submission, the applicant stated that during an appointment with Dr Mark Timlin at Monash Health on 24 April 2019, he was assessed to have ‘mental health issues… poor memory, forgetfulness, poor concentration and poor recall of past events’.[3]
[3] Applicant’s affidavit affirmed 15 and filed 17 May 2019 page 2 at paragraph [6].
The applicant annexed to his affidavit what he referred to as a medical report from Dr Timlin.[4] In this regard, the applicant stated that:
Dr Timlin finds that [his] poor memory, concentration and recall of past events is linked to both [his] current and former mental health issues including symptoms of PTSD, disassociation, low mood, anxiety, disturbed sleep and nightmares. [5]
[4] Applicant’s affidavit affirmed 15 and filed 17 May 2019 page 2 at paragraph [6].
[5] Applicant’s affidavit affirmed 15 and filed 17 May 2019 at annexure NN-2.
The applicant also annexed a letter from Dr Timlin dated 2 May 2019 in which Dr Timlin confirmed that the applicant’s ‘mental health issues have resulted in poor memory recall and concentration which has lead [him] to forget dates of appointments.’ [6]
[6] Applicant’s affidavit affirmed 15 and filed 17 May 2019 at annexure NN-3.
The Minister’s representative opposed the application for reinstatement.[7]
[7] Respondent’s outline of submissions filed 18 October 2019 page 2 at paragraph [4].
Reinstatement application
In determining whether or not to exercise its discretion to grant the application for reinstatement, the court is to have regard to the three factors identified in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 outlined below:
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.[8]
[8] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7].
As noted by the Federal Court in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (“CAL15”), an ‘arguable case’ is one that:
… is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus at the level of assessing whether a ground is ‘arguable’, the court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.[9]
[9] CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [6].
Submissions
At the hearing before me, the applicant appeared on his own behalf and was assisted by an interpreter.
When asked whether he sought to further explain his absence at the directions hearing on 6 February 2019, the applicant said:
I received a letter about that hearing, but I was not able to attend because of the anxiety I was going through. And when I think about going back to Sri Lanka I am very stressed. And my mental health was affected because of that.
…
The main reason for my failure to attend the hearing is the forgetfulness and my mental health issues.[10]
[10] Transcript page 3 at lines 20 to 23, 33 and 35.
It was submitted on behalf of the Minister that this was not a reasonable excuse.[11] It was conceded that the applicant filed medical evidence which explained his failure to attend the directions hearing as a consequence of mental health conditions which impact memory and recall.[12]
[11] Respondent’s outline of submissions filed 18 October 2019 page 3 at paragraph [12].
[12] Respondent’s outline of submissions filed 18 October 2019 page 3 at paragraph [11].
However, whilst the Minister did not take issue with Dr Timlin’s assessment per se, it was submitted that the medical evidence was limited and minimal weight ought to be placed on that evidence.[13]
[13] Respondent’s outline of submissions filed 18 October 2019 page 4 at paragraph [12(d)-(f)].
Additionally, the Minister submitted that the applicant had not provided a reasonable excuse for failure to attend in circumstances where the applicant was on notice of the date for the directions hearing because:
a)the date of the hearing was noted on the cover sheet of his application; and
b)the Minister wrote to the applicant on 27 March 2018 reminding the applicant of the directions hearing date and explaining the importance of the applicant’s attendance.[14]
[14] Respondent’s outline of submissions filed 18 October 2019 page 3 at paragraph [12(a)-(b)].
I accept the Minister advised the applicant in writing of the hearing date and the said date would have been listed on the application filed by the applicant. However, if the applicant had poor memory recall as a consequence of stress and anxiety as reported by Dr Timlin, I do not accept that a reminder of the hearing date over 12 months prior to that date would have been adequate to overcome this difficulty.
The Minister also submitted that the applicant did not seek medical assistance from Dr Timlin until three months after the hearing date. The Minister argued two concerns arose from this delay:
a)firstly, the delay in seeking medical attention meant the medical assessment was not contemporaneous with the applicant’s failure to attend the directions hearing;[15] and
b)secondly, it evidenced the applicant’s delay in seeking to have the application reinstated in circumstances where the Minister sent correspondence dated 6 March 2019:[16]
i)informing him of the costs order made against him;
ii)advising him the application was dismissed; and
iii)informing him of the option to apply for a reinstatement of his application.[17]
[15] Respondent’s outline of submissions filed 18 October 2019 page 4 at paragraph [12(d)].
[16] Respondent’s outline of submissions filed 18 October 2019 page 3 at paragraph [12(c)].
[17] Affidavit of Philippa Jane Mitchell sworn and filed 18 October 2019 at annexure PJM-5.
I do not accept either of these submissions. The letter from Dr Timlin dated 2 May 2019 clearly stated the applicant was a patient with ongoing mental health concerns which Monash Health was assisting him to manage.[18] It further stated, ‘as part of his mental health issues, memory recall and concentration are poor leading to forgetting dates of appointments.’ [19]
[18] Applicant’s affidavit affirmed 15 and filed 17 May 2019 at annexure NN-2.
[19] Applicant’s affidavit affirmed 15 and filed 17 May 2019 at annexure NN-2.
In circumstances where the applicant has provided evidence that he suffers from stress and anxiety, it is not unusual for the applicant to take further time to file the application to reinstate his judicial review claim.
Moreover, although the medical assessment and the letter from Dr Timlin were not contemporaneous in that they were obtained a short time after the hearing date, they clearly addressed:
a)the retrospective nature of the assessment made; and
b)the fact that the applicant’s mental health issues contributed to his non-attendance at the directions hearing.
On balance, I am satisfied, in the circumstances of this case, that the applicant has established a reasonable excuse for failure to attend the directions hearing on 6 February 2019.
Prejudice to the Minister
The Minister quite properly conceded that any prejudice to the Minister arising from the reinstatement of the applicant’s claim could be dealt with by an order for costs.[20]
[20] Respondent’s outline of submissions filed 18 October 2019 page 4 at paragraph [14].
This issue is therefore not determinative of the application before the court.
Does the applicant have a reasonably arguable prospect of success on the substantive application?
As noted in CAL15 per Mortimer J, this is an important consideration in determining whether to exercise the court’s discretion:
because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.[21]
[21] CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4].
However, in considering whether there is an arguable case:
it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.
The applicant filed an amended application in which he raised one ground of review, namely that:
The second respondent fell into error by making an illogical or irrelevant consideration in relation to photographic evidence provided by the applicant.
Particulars
The applicant provide a photograph of a man, woman and very young child which he claimed was photo of his brother (N) and his brother’s wife and child (par 19).
The Immigration Assessment Authority stated that there ‘is no way for me to determine conclusively whether the photo is of the applicant’s brother (N) and his family’ (par 19).
The applicant has a step-brother, brother and three sisters. The photo could have been the either the step-brother or brother.
On the basis of the photograph the IAA drew an inference and reached a conclusion that was based on an illogical or irrelevant consideration.[23]
[23] Applicant’s amended application filed 17 May 2019 page 4 paragraph [1].
When asked to explain what he meant by this at the hearing before me, the applicant said, ‘So my brother went missing. So to show that I gave that photo and they ask me further evidence.’[24]
[24] Transcript page 4 at lines 25 and 26.
Further, when asked to explain what illogical or irrelevant consideration the Minister had regard to, the applicant said, ‘so the reason they have said this – the IAA has no way to prove that is my brother. They asked me about that.’[25]
[25] Transcript page 4 at lines 31 and 32.
The Minister submitted that in order for the applicant to make out a claim that the IAA’s findings were illogical or irrational, he would need to show the IAA’s findings were ‘not supported by reason’[26] and ‘have no better foundation than an arbitrary selection of a result’[27].
[26] WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 at [22].
[27] WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 at [22].
By way of background, as stated in the IAA’s decision, the applicant claimed to fear harm from Sri Lankan authorities due to his and his brother’s involvement with the Liberation Tigers of Tamil Eelam (“LTTE”).[28]
[28] Applicant’s affidavit affirmed and filed 7 March 2018, annexure NN-1 page 3 at paragraph [6].
In particular, the applicant claimed his brother disappeared in 2009 and had not been seen since.[29] He also claimed that:
a)he and his family surrendered to the Sri Lankan Army (“SLA”) in early 2009 and were detained in an internally displaced persons camp in Vavuniya;[30] and
b)he was mistreated and interrogated on multiple occasions at the camp about his links to the LTTE.[31]
[29] Applicant’s affidavit affirmed and filed 7 March 2018, annexure NN-1 page 3 at paragraph [6].
[30] Applicant’s affidavit affirmed and filed 7 March 2018, annexure NN-1 page 3 at paragraph [6].
[31] Applicant’s affidavit affirmed and filed 7 March 2018, annexure NN-1 page 3 at paragraph [6].
In the context of considering these claims of the applicant’s links to the LTTE, the IAA stated:
I note that in his protection visa interview, the applicant stated that he had not had any contact with his brother (N) since his recruitment to the LTTE … But at other times he noted that his brother had left the LTTE after 9 months and married.[32]
[32] Applicant’s affidavit affirmed and filed 7 March 2018, annexure NN-1 page 3 at paragraph [19].
In this context, the IAA further stated:
The applicant has provided a photo of a man, woman and very young child. He claims the photo is of his brother (N) and his brother’s wife and their child. There is no way for me to determine conclusively whether the photo is of the applicant’s brother (N) and his family, but, weighing the evidence, I am prepared to accept the applicant’s claim that it is a photo of his brother, his sister-in-law and their child (emphasis added).[33]
[33] Applicant’s affidavit affirmed and filed 7 March 2018, annexure NN-1 page 3 at paragraph [19].
The IAA went on to say:
This photo suggests to me that even if the applicant’s brother was a member of the LTTE at some period of time, he was able to depart the organisation, marry and have children as the applicant has himself claimed. I conclude that the applicant’s brother was forcibly recruited into the LTTE around 2005 and that he spent approximately nine months with the organisation, before he left, married and had a child.[34]
[34] Applicant’s affidavit affirmed and filed 7 March 2018, annexure NN-1 page 3 at paragraph [20].
The IAA concluded:
Given these findings and the applicant’s own assertion that his brother disappeared from his place of employment I am not satisfied by the applicant’s claims that his family have heard anything from his brother since he joined the LTTE. Having considered all of the evidence I am willing to accept that the applicant’s brother disappeared in early 2009. However, noting his misleading claims about contact with his brother, and his tendency to exaggerate some of his claims I am unpersuaded that the disappearance of his brother had anything to do [with] the applicant’s links, however tenuous, to the LTTE, or resulted from his brother’s own links to the organisation. Given that the applicant has reported he was at work when he disappeared, I do not accept that the applicant’s brother was in hiding at the time of his disappearance.[35]
[35] Applicant’s affidavit affirmed and filed 7 March 2018, annexure NN-1 page 3 at paragraph [21].
By this ground, the applicant claimed:
On the basis of the photograph the IAA drew an inference and reached a conclusion that was based on an illogical or irrelevant consideration.[36]
[36] Applicant’s amended application filed 17 May 2019 page 4 at paragraph [1].
It was not clear which conclusion reached by the IAA was the subject of this complaint. When invited to expand on this in his oral submissions, the applicant did not provide any further clarification.[37]
[37] Transcript page 4 at lines 9 to 36.
The Minister said it understood this to be a challenge by the applicant of the IAA’s conclusion that the brother’s disappearance was not due to any links with the LTTE.[38] A fair reading of paragraph [20] of the IAA’s decision supports this interpretation.
[38] Transcript page 8 at lines 4 to 6.
It is submitted on behalf of the Minister that the applicant’s sole ground of review has no reasonable prospects of success.[39]
[39] Transcript page 8 at lines 27 and 28.
Noting that at this stage of the proceedings I must consider the material before me at an impressionistic level, I agree with this submission.
The IAA accepted the applicant’s submission that the photograph depicted his brother, his sister-in-law and their children, despite noting it was not in a position to determine this on a definitive basis.[40] This was a conclusion reached in the applicant’s favour.
[40] Applicant’s affidavit affirmed and filed 7 March 2018, annexure NN-1 page 3 at paragraph [19].
Ultimately, the IAA did not rely solely on the photograph in concluding the brother’s disappearance was not a consequence of his links with LTTE. Rather, it was based on other concerns the IAA had regarding the applicant’s credibility.[41]
[41] Applicant’s affidavit affirmed and filed 7 March 2018, annexure NN-1 pages 4 to 6 at paragraphs [11] to [21].
As stated, it is not clear what error was asserted in relation to the photograph. But in light of the IAA’s findings as to credibility, even if the IAA did make an error in this regard, it does not render the ultimate conclusions reached illogical or irrational.
Having regard to the IAA’s findings and the evidence before the IAA in its totality, the applicant has not established that the IAA’s conclusions were irrational.
Further, the applicant has not established that the IAA took into account an irrelevant consideration. The applicant did not identify what irrelevant consideration was taken into account and therefore, this purported ground could not succeed in the absence of proper particulars.
Conclusion
Whilst I am satisfied that the applicant provided a reasonable excuse for his failure to attend the directions hearing on 6 February 2019, having reviewed the material at an impressionistic level, I am not satisfied the applicant’s ground of review has any reasonable prospect of success.
I therefore dismiss the applicant’s reinstatement application and order that the applicant pay the first respondent’s costs in a sum to be fixed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 1 November 2019
[22] CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [5].
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