BKX16 v Minister for Immigration and Anor

[2019] FCCA 897

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKX16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 897

Catchwords:
MIGRATION – Reinstatement of an application for dismissal – applicant dismissed for non-appearance – application for judicial review – procedural fairness – failure to assess evidence provided by the Applicant to the Tribunal – Applicant did not furnish evidence for claims – no basis for reinstatement.

Legislation:

Federal Circuit Court Rules (Cth) r 16.05(2)(a). 44.15(2).

Cases cited:

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

Applicant: BKX16 (BY TELEPHONE LINK)

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1224 of 2016

Judgment of: Judge McNab

Hearing date: 27 March 2019

Date of Last Submission: 27 March 2019

Delivered at: Melbourne

Delivered on: 27 March 2019

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Mr Daly

Solicitors for the Respondent: SPARKE HELMORE LAWYRS

ORDERS

1. The Application filed on 21 December 2018 be dismissed.

2. The Applicant pay the Respondent’s costs in accordance with Rule 44.15(2) of the Federal Circuit Court Rules 2001 fixed in the sum of $1,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1224 of 2016

BKX16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

1. By an application in a case filed on 21 December 2018, the Applicant seeks reinstatement of an application filed on 10 June 2016. The 10 June 2016 application was dismissed by reason of the Applicant’s failure to appear at the final hearing on 30 July 2018.

2. There was a notation on the Court order of 30 July 2018 that:

   A. The Applicant was called outside of Court at 10:30 today and there was no response to the call by the Applicant.

   B. The Applicant’s address for service is noted in his application as 19 Myalla Street, Braybrook VIC 3019.

   C. A letter dated 14 June 2018 was sent to the Applicant’s address for service notifying him that the hearing date of 20 August 2018 had been vacated and the hearing was now listed for 30 July 2018.

1. Rule 16.05(2)(a) of the Federal Circuit Court Rules provides that the Court may set aside orders made in the absence of a party. In accordance with well-established authority, in particular, the decision of Ryan J in MZYEZ v The Minister for Immigration and Citizenship [2010] FCA 530 at [7], the factors that the Court is required to consider 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.

2. The Applicant filed his application to set aside the Orders on 21 December 2018 five months after the decision was made. He says in that affidavit that the appeal was lodged in Melbourne and that the date for the first hearing was fixed “for August 2018 at 10:00am”. In his affidavit he states that, “in the meantime I had moved to Western Australia and I was not aware that the case was called on an earlier date and dismissed as I was not present” and that, “I admit that I erred by not intimating my change of address, as I was sure of the date of the hearing fixed 4 August 2018, given to me in writing”.

3. The Applicant alleges in his affidavit that the Tribunal made a jurisdictional error by not assessing the evidence that he had placed before the Tribunal and “not following procedures under the laws of evidence.”

4. The Applicant appeared by telephone from Perth at the hearing of this application today. When invited to expand on his application, the Applicant claimed that he had, in fact, attended the Court in Melbourne on 20 August 2018, arriving that day by plane and attending the court at 10am. He also claims that he called the Court to advise a change of address, but gave no details of when he made that call, who he spoke to, and when he left for Perth. This evidence is in contrast to the affidavit evidence where he says, “I admit that I erred by not intimating my change of address”.

5. I am of the view that there is no reasonable explanation for the Applicant’s failure to attend on 30 July 2018. It was the Applicant’s application and it is a matter for him to advise the Court and the Minister of changes of address for service, and he cannot rely on other people to do that for him.

6. I also find that the delay in making application to set aside the orders of 30 July 2018 are not properly explained, particularly if one accepts that he travelled to Melbourne on 20 August 2018. I note that the Applicant’s affidavit makes no reference to his travel to Melbourne on 20 August 2018. For these reasons, I find that there is no reasonable explanation for the failure to appear and the delay in making the application.

7. In terms of prejudice, the first Respondent concedes it will suffer no prejudice should the application be reinstated. However, the mere absence of prejudice does not of itself justify the exercise of the discretion to reinstate the proceeding.

8. I find that there is no reasonably arguable prospect of success in the main application. The grounds of the application relied upon in the application filed on 10 June 2016 are that the decision of the Tribunal:

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

   (b) denied the applicant procedural fairness.

   No grounds have been advanced in the material now filed by the Applicant in support of the application.

9. On its face, the decision of the Tribunal appears to deal with the application in a comprehensive way. It sets out the Applicant’s claims and gives consideration to those claims. It appears that the legislative framework against which a person is determined to be in need of protection have been considered, and no error is apparent in the decision of the Tribunal.

10. In relation to a claim that there has been a denial of procedural fairness, I note that the Applicant was represented by a migration agent. The Applicant was invited to attend a hearing before the Tribunal on 29 March 2016, and he attended that hearing with the assistance of his migration agent and an interpreter.

11. The Tribunal also discussed the Applicant’s claims and evidence with him at the hearing. At [74] of the Tribunal’s decision the Tribunal put concerns that it had with parts of the Applicant’s evidence to him. The Tribunal also raised with the Applicant concerns about the authenticity of the documents produced by the Applicant at [81].

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 8 April 2019