BHY16 v Minister for Immigration

[2019] FCCA 1080

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHY16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1080

Catchwords:
MIGRATION – Reinstatement – repeated non-appearance and discontinuance of application – further application for reinstatement – no merit – dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Migration Act 1958 (Cth), s.36

Migration Regulations 1994 (Cth), Sch.2 cl.866.221

Cases cited:

AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110

BAL17 v Minister for Immigration and Border Protection [2018] FCA 792

BTR15 v Minister for Immigration and Citizenship [2016] FCA 892

CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344

Gallo v Dawson (1990) 93 ALR 479

House v The King (1936) 55 CLR 499

Jackamarra v Krakouer (1998) 195 CLR 516

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392

MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1066

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

Savrimootoo v Minister for Immigration and Border Protection[2018] FCA 1167

Virdi v Minister for Immigration and Border Protection [2017] FCCA 2661

First Applicant: BHY16

Second Applicant: BHZ16

Third Applicant: BIB16

Fourth Applicant: BIC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1140 of 2016

Judgment of: Judge A Kelly

Hearing date: 17 April 2019

Date of Last Submission: 17 April 2019

Orders pronounced	17 April 2019
Delivered at:	Melbourne

Delivered on: 26 April 2019

REPRESENTATION

Counsel for the Applicants: In person

Solicitor advocate for the Respondents: Ms Kowalewska

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application for Reinstatement filed on 25 March 2019 be dismissed.

2. The first applicant pay the costs of the second respondent fixed at $2,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1140 of 2016

BHY16

First Applicant

BHZ16

Second Applicant

BIB16

Third Applicant

BIC16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain why orders were made on 17 April 2019 dismissing an application for reinstatement of this proceeding.

2. By application filed on 31 May 2016, judicial review was sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 May 2016 affirming a decision of a delegate of the first respondent (Minister) not to grant the applicants protection visas.

Background

1. The first and second applicants, husband and wife aged 38 and 33 years respectively, are citizens of Malaysia.  The third and fourth applicants, aged 6 and 5 years respectively, are their children.

2. The second applicant first visited Australia between 2 February 2010 and 24 April 2010 as the holder of a visitor visa.  On 9 March 2014, the applicants all arrived in Australia as holders of Class UD subclass 601 (Electronic Travel Authority) visas.  They have remained in Australia since that time.  

3. On 17 April 2014, the applicants lodged an application for a Class XA (Protection) visa.  On 28 April 2014, the application was deemed invalid.  On 15 May 2014, the applicants lodged the Class XA (Protection) visa application which is the subject of this proceeding.

4. By letter dated 1 July 2014, the Department of Immigration and Border Protection (Department) invited the applicants to attend an interview on 28 July 2014 to discuss their Protection visa application and claims for protection.  The applicants attended the interview with the aid of a Tamil interpreter.

5. On 12 August 2014, a delegate of the Minister made a decision to refuse to grant the applicants a visa because she was not satisfied that the first applicant was a person in respect of whom Australia had protection obligations under s 36 of the Migration Act 1958 (Cth) and cl 866.221 of Schedule 2 to the Migration Regulations 1994 (Regulations).

6. On 19 August 2014, the applicants lodged an application with the then Refugee Review Tribunal for review of the delegate’s decision. 

7. On 9 January 2015, the Refugee and Immigration Legal Centre was appointed as the applicants’ authorised representative. 

8. By letter dated 6 October 2015, the applicants were invited to attend a hearing before the Tribunal on 10 November 2015 to give evidence and present arguments relating to the decision under review.

9. By facsimile to the Tribunal dated 7 October 2015, the applicants’ representative requested that the hearing be rescheduled because he would be unable to attend. 

10. By letter dated 12 October 2015, the Tribunal invited the applicants to attend a rescheduled hearing on 19 November 2015.

11. On 30 October 2015, the applicants’ representative provided the Tribunal with the applicants’ submissions, attaching statutory declarations from the first and second applicants.

12. On 19 November 2015, the applicants attended the hearing and were assisted by their representative and a Malaysian Tamil interpreter.  The first applicant was late in attending because he had had a ‘blackout’ in the bathroom at the train station on his way to the hearing. The first applicant became distressed during the hearing and it was adjourned to 10 December 2015.

13. On 9 May 2016, the Tribunal affirmed the decision of the delegate not to grant to applicants a Protection visa and provided a statement of reasons for its decision (Reasons).

Procedural history

1. On 31 May 2016, the applicants filed an application in this Court for judicial review of the decision made by the Tribunal.

   Grounds

   1.  The decision of the Tribunal:

   (a)     is affected by an error of law; and

   (b)     denied the applicant procedural fairness

   2.  I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

2. By affidavit affirmed on 31 May 2016, the first applicant annexed a copy of the Tribunal’s decision but otherwise did not adduce any evidence in support of the application for judicial review.

3. By a Response filed on 15 June 2016, the Minister sought that the application be dismissed on the ground that it did not establish any jurisdictional error in the Tribunal’s decision.

4. On 9 November 2016, orders were made, by consent, listing the matter for final hearing. By those orders, the applicants were afforded an opportunity to file any amended application with complete particulars of each ground, any affidavits, written submissions and a list of authorities. The applicants did not take the opportunity provided by those orders to file any further material.

5. On 28 November 2018, the Minister filed submissions which were responsive to the application.

6. The application was set down for Final Hearing on 7 December 2018. As there was no appearance on that date by the applicants, the application was dismissed with costs.

7. On 4 January 2019, an application in a case was filed seeking reinstatement of the application.

8. The application for reinstatement was supported by an affidavit of their lawyer, Ms Kerdo, affirmed on 17 December 2018 which deposed that the applicants were unable to afford a lawyer, but had sought her assistance so as to apply for documents from the respondents by means of a request under the Freedom of Information Act. Ms Kerdo deposed that she had first become aware on 12 December 2018 that the application had been dismissed and had contacted the second applicant, who stated that she was of the belief that Ms Kerdo was on the record and had adjourned the matter.  The basis for that belief was otherwise not explained.

9. On 24 January 2019, the application for reinstatement was dismissed in default of any appearance by or on behalf of the applicants.

10. Somewhat curiously, on 24 January 2019, the applicants’ lawyer had also filed a notice of discontinuance. The notice was not served on the solicitor for the first respondents. It was in those circumstances that the application for reinstatement was dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001.

11. Notwithstanding the filing of the notice of discontinuance, on 25 March 2019 a further application for reinstatement was filed.  The application was supported by an affidavit affirmed by the first applicant in which he deposed to having relied upon a private lawyer but did not depose that the notice of discontinuance had been filed without instructions.

12. Having regard to the content of that affidavit, an order was made in chambers affording the applicants an opportunity to file and serve any further affidavit in support of the application.  They did not do so.  The application was fixed for hearing on 17 April 2019.  On that date the first applicant appeared with the assistance of an interpreter.

Reinstatement

1. Where an applicant does not appear at a hearing, the Court may dismiss the application: r 13.03C(1)(c).

2. The Court may set aside an order made in the absence of a party: r 16.05(2)(a). The principles which are applicable to the discretionary power to reinstate a proceeding are well settled. Where a power conferred by rules of court is cast in discretionary terms, the exercise of such power is not automatic but calls for the exercise of that discretion: cf Gallo v Dawson (1990) 93 ALR 479, 480 (McHugh J). Inherent in the conferral of a discretionary power is an assumption that some applications may be refused: Jackamarra v Krakouer (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J). The waste of scarce Court resources is not an irrelevant consideration: MZAKQ v Minister for Immigration and Border Protection.[1]

   [1] [2016] FCA 1392 at [11] (Logan J).

3. In relation to the power to reinstate a proceeding, in CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 at [4], Mortimer J restated the applicable test in these terms:

   . . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.

   See also the discussion in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs;[2]  MZYEZ v Minister for Immigration and Citizenship;[3] BTR15 v Minister for Immigration and Citizenship;[4] AAI15 v Minister for Immigration and Border Protection.[5]

   [2]             [2005] FCA 1066 at [18] (North J).

   [3]             [2010] FCA 530 at [7] (Ryan J).

   [4]             [2016] FCA 892 at [7] (Edelman J).

Applicable threshold

1. The exercise of discretion in favour of an order for reinstatement does not require the court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review: CAL15 at [5]. Rather, on an application for reinstatement, the threshold which is applicable to a consideration of the merits of the application is whether the grounds for judicial review were shown to be ‘arguable’: CAL15, [5] citing MZABP v Minister for Immigration and Border Protection.[6]  There, Mortimer J stated at [6]:

   The threshold is whether a ground of review is “arguable”. That means it 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. (emphasis added)

   [6]             [2015] FCA 1391 at [62]

2. More recently, in Savrimootoo v Minister for Immigration and Border Protection,[7] Mortimer J referred to CAL15 and described the discretion to reinstate a proceeding as a broad one. 

   [7] [2018] FCA 1167 at [47].

3. The assessment upon an application for reinstatement, which requires the court to consider whether a ground of review is arguable, is evaluative.  As Ryan J observed in MZYEZ, it follows from the principles considered above that the “decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles” stated by Dixon, Evatt and McTiernan JJ in House v The King[8]: cf BAL17 v Minister for Immigration and Border Protection.[9]

   [8] (1936) 55 CLR 499 at 504 to 505

   [9] [2018] FCA 792 at [10] (Bromwich J).

4. I apply these principles in the present application.

5. I did not consider that the applicants had demonstrated an arguable basis for explanation for their non-appearance.  As noted, the proceeding had been listed for hearing on three occasions and in those circumstances, the affidavit did not provide any satisfactory explanation for their failure to appear on 24 January 2019.

6. No question was raised whether there any prejudice was suffered by the Minister if the matter were to be reinstated.

7. The decisive consideration against the grant of relief was that the applicants did not demonstrate an arguable case on judicial review.

8. The grounds of review were so generalised and unsupported by particulars that they were incapable of supporting a conclusion that the Tribunal’s decision was affected by jurisdictional error.  As the applicants were self-represented, I have considered the Reasons of the Tribunal and do not identify any error in the decision.  For completeness, I consider that the filing of the notice of discontinuance was a further bar to the reinstatement of the application: cf Virdi v Minister for Immigration and Border Protection [2017] FCCA 2661 and cases cited.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 26 April 2019

[5] [2018] FCA 1110 at [29] (Tracey J).