BIR18 v Minister for Immigration

[2019] FCCA 3291

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIR18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3291

Catchwords:
MIGRATION – Immigration Assessment Authority – reinstatement application – application granted – directions made for final hearing.

Legislation:

Migration Act 1958 (Cth), ss.5H, 473CB, 473DC, 473DD, Part 7AA.

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

Cases cited:

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

Fattah v Minister for Home Affairs [2019] FCAFC 31

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

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

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

Applicant: BIR18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 704 of 2018

Judgment of: Judge Mercuri

Hearing date: 23 October 2019

Date of Last Submission: 23 October 2019

Delivered at: Melbourne

Delivered on: 15 November 2019

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondents: Mr Van der Westhuizen

Solicitors for the respondents: DLA Piper

ORDERS

1. The applicant’s application in proceeding number MLG704/2018 filed on 21 March 2018 be reinstated.

2. The order made by Registrar Gitsham pursuant to rule 13.03(1)(c) of the Federal Circuit Court Rules 2001 (Cth) dismissing the application be set aside.

3. The applicant’s amended application filed 11 June 2019 be listed for final hearing before Judge Mercuri on 10 February 2020 at 10:00am.

4. By 4.00pm on 29 November 2019, the first respondent file and serve one copy of a bundle of relevant documents (court book) in electronic form and one copy in paper form and for that purpose, the court book:

   (a)be in portable document format (pdf);

   (b)be capable of being searchable for specified text;

   (c)have an index and be paginated;

   (d)have each entry in the index bookmarked; and

   (e)be set so that when opened:

   (i)it displays at 100% zoom; and

   (ii)the bookmarks menu is displayed.

5. Twenty-eight (28) days before the final hearing, the applicant file and serve:

   (a)any amended application with proper particulars of the grounds of the application;

   (b)a supplementary court book, if any; and

   (c)written submissions.

6. Fourteen (14) days before the final hearing, the first respondent file and serve written submissions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 704 of 2018

BIR18

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application in a case filed by the applicant on 11 June 2019 seeking the reinstatement of an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (“IAA”) made on 23 February 2018, which affirmed a decision of a delegate of the Minister for Home Affairs (“the Minister”) refusing to grant the applicant a protection visa.

2. The applicant’s application for judicial review was listed before Registrar Gitsham on 6 March 2019. The applicant conceded that he failed to appear at the directions hearing and his application was therefore 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.

3. Pursuant to rule 16.05 of the FCC Rules, the court may vary or set aside an order after it has been entered if it was made in the absence of a party.

4. The applicant relied upon an affidavit affirmed on 29 May 2019 and filed on 11 June 2019.  In that affidavit, the applicant gave evidence that he was aware of the directions hearing, but upon enquiring about the directions hearing with his lawyer, he was told that he did not need to attend.[2] Indeed, the applicant deposed as follows:

   a)when he was advised in writing of the directions hearing on 20 April 2018, he contacted his lawyer and was told that he was required to attend the directions hearing and his lawyer would accompany him;[3]

   b)he then contacted his lawyer again on or about 2 March 2019 to confirm that he would be attending the directions hearing and was then informed that he did not need to attend and a new date would be provided at which he would be required to attend;[4] and

   c)on 5 April 2019, the applicant received a letter from the solicitors for the respondent advising that his case had been dismissed due to his non-appearance at the directions hearing.[5] 

   [2] Applicant’s affidavit affirmed 29 May and filed 11 June 2019 at paragraph [3].

   [3] Applicant’s affidavit affirmed 29 May and filed 11 June 2019 at paragraph [5].

   [4] Applicant’s affidavit affirmed 29 May and filed 11 June 2019 at paragraph [7].

   [5] Applicant’s affidavit affirmed 29 May and filed 11 June 2019 at paragraph [8].

5. The Minister’s representative opposed the application for reinstatement.[6]

   [6] Respondent’s outline of submissions filed 18 October 2019, page 2 at paragraph [4].

IAA’s reasons

1. As this application was brought at a preliminary stage of the proceedings, the following background is taken from the IAA’s decision, a copy of which is attached to the applicant’s affidavit affirmed 8 March 2018.

2. The applicant is from Sri Lanka and identifies as a Roman Catholic Tamil.  He arrived in Australia by boat on 14 October 2012 and applied for a Safe Haven Enterprise Visa on 21 September 2016.[7]

   [7] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 2, paragraph [1].

3. On 27 July 2017, a delegate of the Minister refused the applicant’s visa application.[8] 

   [8] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 2, paragraph [2].

4. The IAA had before it the material provided by the Secretary under section 473CB of the Migration Act 1958 (Cth) (“the Act”).  The IAA acknowledged receipt of submissions, a copy of an attendance notice and a copy of a summons (and respective translations) from the applicant’s representative on 23 August 2017.[9]

   [9] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 2, paragraph [5].

5. The IAA then set out the terms of section 473DC of the Act and the circumstances in which it can have regard to new information[10] and its conclusions as to the information to which it could have regard.[11]

   [10] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 2, paragraph [6].

   [11] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at pages 2 and 3, paragraphs [7] and [8].

6. The IAA set out various ‘new’ claims which were raised by the applicant’s representative in the written submissions to which the IAA had regard.[12] 

   [12] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraph [9].

7. The IAA made reference to the following ‘new’ information provided by the applicant that:

   a)the applicant’s brother was murdered;

   b)the applicant is married; and

   c)his wife has strong family links to the LTTE.[13] 

   [13] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraph [10].

8. The IAA noted that some of this information was inconsistent with information provided by the applicant during his arrival interview.   Moreover, the IAA went on to say that in addition to his arrival interview, the applicant also had the opportunity to raise these matters in his SHEV interview and also in the statutory declaration he provided.[14] 

   [14] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraph [10].

9. It was in this context that the IAA found that as the applicant had not raised these matters previously, the applicant’s new claims were not credible.  The IAA went on to conclude that in all the circumstances, it could not consider the new information.[15]

   [15] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraph [10].

10. The IAA also considered various documents provided by the applicant, both of which predated the delegate’s decision.  After considering these documents, the IAA concluded that they were not genuine documents and therefore did not contain credible personal information.[16] The IAA was not satisfied that the documents met the requirements of section 473DD(b)(i) or (ii) and therefore could not be considered.

    [16] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraph [11].

11. The IAA then set out its factual findings at paragraphs [13] to [26].  Relevantly, the IAA stated:

    During the arrival interview… the applicant said his father’s brother was shot dead while fishing about six years ago…[17]

    …

    [17] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraph [14].

    I am prepared to accept the applicant’s father’s brother was shot while fishing in 2006.[18]

    [18] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraph [26].

12. The IAA then set out the definition of a ‘refugee’ as set out in section 5H(1) of the Act[19] and the definition of a ‘well-founded fear of persecution’.[20]

    [19] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraph [27].

    [20] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraph [28].

13. The IAA set out its findings of fact at paragraphs [29] to [35] of its reasons, but concluded that the applicant did not meet the requirements of the definition of a refugee.[21] 

    [21] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraph [36].

14. The IAA then proceeded to consider whether the complementary protection obligations were applicable to the applicant[22] and concluded that the applicant did not meet the requirements of section 36(2)(aa).

    [22] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraphs [37] to [42].

15. On this basis, the IAA affirmed the decision of the delegate not to grant the applicant a protection visa. 

Reinstatement application

1. 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 (“MZYEZ”) 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.

   In this connection, a party’s absence is analogous to a party’s failure to file an originating document or notice of appeal, in that, even where a reasonable excuse for that delay or failure exists, the Court will not exercise its discretion in the party’s favour where there is little or no prospect of that party’s succeeding on the substantive claim.[23]

   [23] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]-[8].

2. As noted in MZYEZ, the decision as to whether or not to reinstate an application is a discretionary one.[24]

   [24] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [10].

3. Similarly as noted in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (“CAL15”) by 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.[25]

   [25] CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4].

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.[26]

   [26] CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [5].

5. The Minister’s representative quite rightly conceded that in considering the applicant’s grounds in an application for reinstatement such as this, the court is required to do so at an impressionistic level.[27]   Although the court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 (“MZABP”) considered an application to extend time, a similar approach would apply to the consideration of whether there is an arguable case for the purpose of granting an application for the reinstatement of an application dismissed as a result of the applicant’s failure to attend.

   [27] Applying the same reasoning as identified by Mortimer J in MZABP.

6. In MZABP, Mortimer J said:

   …it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by the time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage.  There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued.  Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.  That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time.  If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2) (emphasis added).[28]

   [28] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62].

7. Similar principles apply to the exercise of the court’s discretion in this instance.

Submissions

1. At the hearing before me, the applicant appeared on his own behalf and was assisted by an interpreter.

2. The Minister conceded that:

   a)the applicant had a reasonable excuse for his non-attendance on the face of his affidavit material; and

   b)there was no prejudice to the Minister which could not be addressed by a costs order in its favour.

3. However, it was submitted that applying the ‘impressionistic assessment’ as articulated in MZABP, the applicant has failed to demonstrate an arguable case and therefore on that basis, the reinstatement application ought to be dismissed.

4. At the commencement of these proceedings, the applicant was invited to make submissions in support of his application.  He said:

   a)he had been misled by his lawyer about having to attend the directions hearing;

   b)as a result his application was dismissed and he runs the risk of being removed from the country;

   c)he has serious safety concerns in his home country; and

   d)he had a permanent job and because he failed to attend the directions hearing, he lost his right to work and he therefore lost his job which has made his life here all the more difficult.[29]

   [29] Transcript pages 2 and 3.

5. The applicant filed an amended application on 11 June 2019 which he seeks to press if his application for reinstatement is granted.  The grounds of review set out in that amended application are as follows:

   The decision of the Second Respondent to refuse to grant the Applicant a Safe Haven Enterprise Visa is affected by the following jurisdictional error:

   1.The Second Respondent erred in law by making a decision not taking into relevant information. (sic)

   2.The Second Respondent ignored relevant material in a way that affected its exercise of power.

   3.The First and Second Respondent failed to apply the Complementary provision correctly.

   a.The Respondent has not properly considered the alternative criterion in under the Complementary protection in particular that the person will be subject to degrading treatment of punishment.

   4.The Second Respondent fell into error by making an illogical or irrelevant conclusion that the new information raised by the Applicant was not credible, and failing to accept the new information pursuant to section 473DD of the Migration Act 1958.

   Particulars

   a.The applicant’s representative provided submissions to the Second Respondent that contained new information (para 5).

   b.The new information included that the Applicant’s brother was murdered, the Applicant is married, and his wife has strong familial links to the LTTE (para 10).

   c.The Second Respondent’s delegate found it ‘incredible’ that the Applicant would fail to mention these claims during his arrival interview and at the SHEV interview and failed to offer the Applicant a further interview to discuss these claims.

   d.The Second Respondent failed to afford the Applicant an opportunity to explain the new information at an interview.

   e.There was insufficient evident (sic) available to the Second Respondent to make a finding about the Applicant’s credibility.

   f.This reasoning process was illogical such that a rational decision maker would not have come to that conclusion.[30]

   [30] Applicant’s amended application filed 11 June 2019 at page 4.

6. I accept the submissions made on behalf of the Minister that on the face of this application, grounds one, two and three have no real prospects of success for the following reasons:

   a)the first two grounds of review are non-particularised allegations of jurisdictional error which are incapable of being established in their current form; and

   b)there is no factual basis upon which the third ground could succeed, in circumstances where the ground alleges that the IAA did not consider the complementary protection criterion; given the decision record clearly indicates at paragraphs [37] to [43] that the complementary protection provisions were considered.

7. In relation to ground three, the IAA accepted that:

   …on return to Sri Lanka, the applicant will be subject to a series of administrative processes (as outlined above) and identified as a person that departed Sri Lanka illegally and is a returning asylum seeker.  I have found that the applicant is not a person of interest to the Sri Lankan authorities and, upon his return, I am not satisfied that the applicant faces a real risk of being arbitrarily deprived of his life; of facing the death penalty or of being subjected to torture.  I am not satisfied that the acts or omissions of the Sri Lankan authorities during this administrative process are intended to cause pain or suffering, severe pain or suffering or to cause extreme humiliation so as to amount to cruel, inhumane or degrading treatment/punishment.[31]

   [31] Applicant’s affidavit affirmed 8 and filed 21 March 2018, Annexure NJ-1 at page 3, paragraph [41].

1. In these circumstances, ground three does not identify any potential jurisdictional error.  On a fair reading of the IAA’s decision record, it is apparent that the IAA considered the complementary protection provisions and applied them to the facts in this case.  To the extent that the ground states that the provisions have not be applied ‘correctly’, it does not particularise the alleged jurisdictional error relied upon. 

2. To the extent that it takes issue with the conclusion reached by the IAA, ground three does little more than seek impermissible merits review.

3. However, for the reasons set out below, I do not accept the Minister’s submission that the fourth ground rises no higher than seeking impermissible merits review. 

4. When asked to respond to the Minister’s submissions, the applicant said:

   …there is a mention about my brother was murdered and… that is a confusion in that.  I have clearly said that it’s not my brother.  It’s my father’s brother, and I have also produced evidence about that.  So a person from here may not be able to assess my risk in Sri Lanka… my family has made a report in the police station in Sri Lanka and we have given that document and a letter from a parliament member. …I arrived in Australia in 2012 and I’m here in this country for more than seven years -… on a bridging visa.  Because I have safety concerns in my country, that’s why I’m living here in the bridging visa.  If I had no problems in Sri Lanka, I would have returned.[32]

   [32] Transcript page 8 at lines 21 to 31.

5. When asked whether there was anything further he wished to add in relation to ground four, the applicant stated:

   So in my entry interview… mine only went for 15 minutes, and because of that, I was not able to give a lot of information, and then when I gave information later, they said those are new information and in that 15 minute, they also used the interpreter and some of the things were misinterpreted.  Because of that, I was in a situation that I have to rely on what I said in that entry interview, so whenever I gave new information, they refused to consider that.  Also, and there were some incidents actually happening in Sri Lanka in relation to my situation.  When I give those information which are happened after I came to Australia, they are not considering, saying that it’s new information.[33] 

   [33] Transcript page 9 at lines 33 to 42.

6. Given the applicant represented himself, it is not surprising that he did not clearly articulate the basis of his application. However, doing the best I can, I understand the basis of ground four to assert illogicality:

   a)firstly, on the basis that the IAA misunderstood or misinterpreted the evidence he had given about the death of his uncle and on this basis, formed an adverse view of his credibility which is not reasonably or logically supported by the evidence; and

   b)secondly, it was illogical for the IAA to refuse to allow him to lead the new information.

7. As submitted by the Minister’s representative, the IAA is required to undertake a somewhat more limited review than is permissible in other circumstances pursuant to Part 7AA of the Act. This review is largely without reference to ‘new information’, except in limited circumstances. That is, the IAA can only have regard to ‘new information’ if the requirements of section 473DD are met.

8. It was submitted by the Minister that by ground four, the applicant is essentially claiming that the IAA should have accepted the new information. 

9. As noted by Crennan and Bell JJ in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611:

   In the context of the tribunal’s decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under section 65, is one which not rational or logical decision maker could arrive on the same evidence.[34] 

   [34] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [130].

10. Similar comments were made recently by the Full Court of the Federal Court in Fattah v Minister for Home Affairs [2019] FCAFC 31 where the court said:

    …To discern illogicality (or irrationality) one must demonstrate that there is only one conclusion open on the evidence or that there is no logical connection between the evidence and the interferences drawn…[35]

    [35] Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45].

11. I accept the Minister’s submission that for ground four to succeed insofar as it relates to the IAA’s decision not to admit the new information, the applicant would need to satisfy the court that the only logical conclusion open to the IAA was that the requirements of section 473DD were met. If this is a matter in respect of which reasonable minds might differ, then a finding of illogicality is not open.

12. However, ground four also asserts that the conclusion about credit, to the extent that it relates to a ‘new claim’ about his brother’s death was illogical, as I understand the applicant’s submission, this was not a claim that he in fact made. 

13. It is not possible for this court, without the benefit of the relevant documents, to determine that matter.  Moreover, for the reasons discussed above, it is not appropriate for this court to finally determine that issue at this preliminary stage. 

Conclusion

1. For each of these reasons, I am therefore satisfied that ground four is at least arguable and the applicant’s application for reinstatement ought to be granted.

2. I make the orders set out at the commencement of these written reasons.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:              15 November 2019