BMH15 v Minister for Immigration
[2016] FCCA 3199
•22 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMH15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3199 |
| Catchwords: MIGRATION – Application in a Case to reinstate – substantive application seeking review of the decision of the former Refugee Review Tribunal – whether there is a satisfactory explanation for non-appearance – whether it is in the interests of justice to warrant reinstatement – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 476 |
| Cases cited: SZVCH v Minister for Immigration & Anor [2015] FCCA 2950; (2015) 303 FLR 403 Minister for Immigration v SZVCH [2016] FCAFC 127 |
| Applicant: | BMH15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2049 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 8 July 2016 and 19 July 2016 |
| Date of Last Submission: | 19 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2016 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Mr Glavac of Clayton Utz |
ORDERS
The Application in a Case made on 30 May 2016 is dismissed.
Order 3 made by Registrar Morgan on 3 March 2016 is vacated.
The applicant pay the first respondent’s costs set in the amount of $9000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2049 of 2015
| BMH15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an Application in a Case (“AIC”) made on 30 May 2016 seeking reinstatement of an originating application made by the applicant on 22 July 2015. That originating application was made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 18 June 2015, which affirmed a decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.
That application was dismissed by a Registrar of this Court pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) at a callover before the Registrar, because of the applicant’s non-appearance at the callover.
Although the AIC makes no reference to r.16.05 of the FCC Rules, I have proceeded on the basis that the applicant sought reinstatement of his originating application pursuant to that Rule.
The Minister opposes the making of such an order. The Minister’s written submissions, filed in these proceedings on 7 June 2016, set out the relevant procedural history. Given what is contained on the Court’s file, this is a fair summation of the relevant events, and the relevant paragraphs are as follows ([6] – [11] of the respondent’s written submissions):
“[6] The Originating Application was listed for a first court date at 10:15am on 20 August 2015. The applicant did not attend the first court date and the matter was stood over. The First Respondent’s solicitors, Clayton Utz, wrote to the Applicant that day stating that:
a. As the Applicant had not attended, the Court had listed the matter for a further directions hearing on 27 August 2015 at 10:15am; and
b. If the Applicant did not attend the further directions hearing, whether in person or by legal representative, the First Respondent would seek orders that the Court dismiss the application with costs.
[7] On 27 August 2015, the Applicant attended at the directions hearing and the Court listed the matter for callover hearing on 3 March 2016 at 2:00pm.
[8] On 18 September 2015, the First Respondent’s solicitors served the Court Book on the Applicant.
[9] On 3 March 2016, the Applicant did not attend the callover hearing. The Court dismissed the application due to the non-attendance and ordered the Applicant pay the Respondent’s costs fixed in the sum of $3,416.
[10] On 7 March 2016, the First Respondent’s solicitors wrote to the Applicant enclosing a copy of the sealed orders dismissing the application and a copy of r 16.05 of the Rules.
[11] On 30 May 2016, nearly 3 months after the application was dismissed, the Applicant filed the Reinstatement Application.”
The Minister’s written submissions also make reference to the principles governing the exercise of the Court’s power pursuant to r.16.05 of the FCC Rules ([12] – [15] of the respondent’s written submissions):
“[12] The principles governing the exercise of power under r.16.05(2) of the Rules were articulated by Her Honour Judge Barnes in NAJN v Minister for Immigration (NAJN)[1] as follows:
[1] [2003] FMCA 414 at [7].
“Such discretion must be exercised with caution having regard to the importance which the public interest has in the finality of litigation recognising the tension between the public interest in the expeditious conduct of litigation and the obligation of the court to ensure litigants have the opportunity to present a case where there is a real dispute. The power is generally not to be exercised unless the applicant can show that by accident and without fault on his part the order was made without his being heard. It is necessary to look at the whole of the circumstances. (Australian Fisheries Management Authority v P.W. Adams Pty Limited No. 2 (1996) 66 FCR 349).
[13] In SZSNJ v Minister for Immigration & Anor (No.2),[2] his Honour Judge Nicholls commented that the exercise of power under r 16.05(2) requires consideration of whether:
a) ‘the Applicant has presented a satisfactory explanation for his lack of appearance’; and
b) ‘there is an arguable case in the application calling for review, or the interests of justice require that the Applicant should be given the opportunity to present his case where a real dispute exists. That is, whether there exist material arguments that might reasonably lead to a different order to the one already made by the Court.’
[14] In SZQZD v Minister for Immigration & Anor (SZQZD),[3] Judge Riley observed that ‘delay in bringing the reinstatement application’ is also ‘clearly a relevant factor’.
[15] Finally, in MZYEZ v Minister for Immigration and Citizenship,[4] it was said that a relevant consideration was the existence of prejudice which might flow to the other party from the reinstatement, and the extent to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the Court is empowered to grant.”
[Footnotes renumbered.]
[2] [2013] FCCA 260 at [23] – [25].
[3] SZQZD v Minister for Immigration & Anor [2013] FCCA 656; (2013) 136 ALD 119 (SZQZD) at [5].
[4] [2010] FCA 530 at [7].
Evidence Before the Court
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The applicant’s affidavit of 30 May 2016 in support of the Application in a Case filed on the same day.
c)The applicant’s affidavit of 20 July 2015 in support of the originating application filed on 22 July 2015.
Before the Court
The applicant’s AIC came on for hearing on 15 June 2016. At that time, the applicant appeared in person and was assisted by an interpreter in the Indonesian language.
The applicant sought an adjournment of the proceedings because he said he wanted his friend to come and give evidence as to why the applicant did not attend at the callover before the Registrar on 3 March 2016. The applicant did not offer to give any evidence himself on this matter. I was persuaded that it was appropriate to give the applicant the opportunity to present any evidence in this regard, and granted the adjournment.
Further, and as set out below, one issue in this case at that time was the relevance of Judge Driver’s judgment in SZVCH v Minister for Immigration & Anor [2015] FCCA 2950; (2015) 303 FLR 403. The adjournment would also allow time, such that the appeal from that judgment may have been resolved. Since that time, the Minister was successful in his appeal and this matter is now of no assistance to the applicant (Minister for Immigration v SZVCH [2016] FCAFC 127 (“SZVCH”) and see [52] below).
The hearing resumed on 8 July 2016. The applicant sought leave to read his affidavit of 30 May 2016. There was no objection by the Minister. The applicant made no reference to his affidavit of 20 July 2015, however see [58] below.
The applicant indicated that he had brought two friends to Court who were prepared to give evidence on his behalf on the issue of his
non-appearance before the Registrar on 3 March 2016.
The applicant then stated that in addition to the evidence of his two friends, he wanted to explain to the Court that his “lawyer” whom he also described as his “immigration agent” had called him on 3 March 2016. He said he wanted the Court to call the agent by telephone to confirm that he had been sick on “that day”. That is, 3 March 2016 when his application was dismissed by a Registrar of the Court (see further below).
The applicant gave evidence and was cross-examined by the Minister’s solicitor. The applicant’s evidence was that he understood, because his agent had told him, that it was important to attend Court on 3 March 2016. He said that he understood that it was important if he wanted to stay in Australia. However, he was “really sick” for one or two days before, and including, 3 March 2016. He claimed that his illness prevented him from attending.
In cross-examination the applicant said that his illness was so severe that he “couldn’t wake up from bed”. He said that he had a similar illness four years ago and had been on antibiotics and had also undergone a blood test because the doctor at that time thought he may have had a “serious illness”. However, the applicant said “at the end I got nothing”. He did not consult a doctor on this occasion because he had been “scared” by the previous doctor’s diagnosis which was ultimately found not to have been accurate.
The applicant’s evidence was that he did not get out of bed “at all” for four days, in and around 3 March 2016, and did not consult a doctor or otherwise go to a medical centre. He asked his friend, whom he later identified as “Budy”, and who also gave evidence in these proceedings, to buy “Panadol” and an energy drink, and he also drank “a lot of water”. He said that this friend shared a room with him in March 2016.
The applicant confirmed that he had not attended at Court on a previous occasion for the first Court date before the Registrar on 20 August 2015. The applicant’s explanation for this was not clear. At best it appeared that his migration agent gave him the “wrong time” for the Court appearance.
He also gave evidence that he did not attend an interview with the Minister’s delegate on 18 June 2014 (see also CB 49.3). His reason for this was that he thought he was going to “lose” the application because he had “made” the application himself. The applicant confirmed that that reason was in relation to his “first” protection visa application.
It was put to the applicant that the document at CB 49 referred to his “second” application for a protection visa made on 24 February 2014, in which he had been represented by a registered migration agent (Mr Songtau Lu). The applicant did not attend at the interview with the delegate in relation to that application. When it was pointed out to the applicant that he was represented in relation to his “second” application, he said he just “followed” his migration agent’s advice.
The applicant’s evidence in relation to his relevant conduct after the illness on 3 March 2016, was not clear. He confirmed that he owned a mobile phone at that time. However, he took no steps to contact the Minister’s solicitors, or even the Court’s Registry to explain his inability to attend.
He gave two reasons for this. One, he did not have a phone number for the Court. Two, his migration agent (whom he later confirmed was Mr Songtau Lu), told him “not to bother”.
When it was put to the applicant that even after his illness he took no action on reinstating his case for over two months, he stated that he received advice from his migration agent that in the circumstances the “last step” for him was to “send a letter to the Minister”.
The applicant also gave evidence that he continued to rely on advice from his migration agent, Mr Songtau Lu, in relation to his originating application to the Court, and the Application in a Case to reinstate the originating application that is currently before the Court.
I sought to provide an opportunity to the applicant to explain his initial request that Mr. Lu give evidence to the Court in light of his subsequent evidence that Mr. Lu was assisting him in the Court proceedings, and had rung the applicant on 3 March 2016.
The applicant’s evidence was that Mr Lu had assisted him in the drafting of the grounds of the originating application to the Court, and that Mr Lu had telephoned him on 3 March 2016 (the day of his
non-appearance at Court).
The applicant did not provide, despite specific opportunity to do so, a satisfactory explanation as to why he did not ask Mr Lu to contact the Minister’s solicitors or the Court’s Registry, either on that day, or soon thereafter to inform them of his illness and his inability to attend Court 3 March 2016.
Mr Lu attended Court and gave evidence, and his evidence contradicted the applicant’s evidence in material respects. First, Mr Lu denied that he assisted the applicant in drafting the grounds of the originating application to the Court filed on 22 July 2015.
Second, he contradicted the applicant’s evidence that he gave the applicant advice on his “chances of success” in having his case reinstated after the originating application was dismissed by a Registrar of this Court at the callover on 3 March 2016.
Third, the applicant had given evidence that Mr Lu had assisted him in his application for the protection visa. This is consistent with what appears in the CB (at CB 24). As mentioned previously, the applicant did not attend an interview scheduled with the delegate. His evidence was that Mr Lu told him “not to bother”. When he gave evidence, Mr Lu denied saying this to the applicant.
Fourth, Mr Lu’s evidence was that the applicant was sick on 3 March 2016 when the Registrar dismissed his originating application. However, at least it appears, Mr Lu did not see the applicant on that day, but relied on a telephone conversation he had with the applicant at about, or before, 5pm.
Mr Lu’s evidence regarding his relationship with the applicant was clear, in that he assisted him as a migration agent in his application for the protection visa. However, it was not clear what role he played in relation to the originating application to the Court and the subsequent AIC now before the Court.
The applicant’s evidence was that Mr Lu assisted him with both applications to the Court. However, Mr Lu’s evidence was that his assistance was limited to witnessing the applicant’s signature on the applicant’s affidavit in his capacity as a Justice of the Peace.
The applicant also called a witness “Budy” to give evidence on his behalf. His evidence was that he was in Australia as an overseas student and that at the relevant time he was, with another person, a “roommate” of the applicant’s. He gave further evidence that on 3 March 2016, the applicant was “sick” and he bought medicine for him. “Budy” was unable to give evidence as to the applicant’s situation for the whole of that day as he went to work in the morning. He said he came back briefly in the afternoon, but then went out to study.
The applicant also called evidence from a Mr Adri Potrou, kitchen hand, who was also in Australia as an overseas student. He did not live with the applicant. His evidence was limited, and at best, was that the applicant did not play badminton with him for two or three weeks (apparently around the relevant time).
After hearing Mr Lu’s evidence, the applicant subsequently submitted that he “maybe” had been “confused”, and that Mr Lu did not assist him in drafting his applications to the Court. He then submitted that his “roommate” drafted the documents (this was after the witness had been excused).
A yet further explanation provided by the applicant was that his girlfriend could assist in explaining the grounds of the originating application and the AIC, as she had assisted in their drafting.
The applicant was not an impressive witness. His own witnesses either contradicted his evidence, or were not able to provide direct corroboration.
Consideration
Even if, at best for the applicant, he was unwell on 3 March 2016, there is no satisfactory evidence, let alone any medical evidence, to say how any such ailment affected his capacity to attend the Court event on that day. Importantly, there was no satisfactory explanation as to why “Budy”, who, on his own evidence, took time to buy medicine for the applicant, but was not able to at least contact the Minister’s solicitors or the Court’s Registry on the applicant’s behalf, to notify of the applicants inability to attend the callover before the Registrar on the relevant day.
Further, there was no satisfactory explanation as to why the applicant’s girlfriend, who, on one version of the applicant’s explanation, assisted him with the drafting of his grounds of both the originating application and the AIC, could also not contact the Court’s Registry or the Minister’s solicitors.
As for Mr. Lu, his role was not clear. But even if he was not assisting the applicant “formally” before the Court, his involvement in ringing the applicant at home on 3 March 2016, leaves unexplained why at the least the next day, he made no attempt to ring the Minister’s solicitors to convey the applicant’s explanation for his non-appearance at the callover before the Registrar.
In all, no satisfactory explanation has been provided for the
non-appearance at the callover before the Registrar on 3 March 2016.
I also cannot see that the interests of justice require that the applicant be given a further opportunity to present. and be heard. in relation to his originating application.
First, and as set out above, the applicant has provided no satisfactory explanation whatsoever for his non-appearance before the Registrar. The applicant had attended in person at a previous Court event on 27 August 2015, when the Registrar made orders, including setting the matter down for a callover on 3 March 2016.
In short, the applicant had reasonable notice of the Court event on 3 March 2016. His affidavit provides no explanation for his
non-appearance, let alone a satisfactory or reasonable explanation. His evidence was that he knew of the Court event but was ill. For the reasons set out above, this is not a satisfactory explanation for his
non-appearance.
Second, the applicant delayed for nearly three months after his originating application was dismissed before filing his AIC. There is no evidence from the applicant as to when he became aware of the order dismissing his application. Nor is there any evidence as to why the current AIC was not made in a timely fashion.
In my view, given that the applicant had reasonable notice of the Court event, has provided no satisfactory explanation for his non-appearance and delayed in seeking reinstatement, the interests of justice are not served by granting reinstatement in these circumstances. In the tension between expeditious disposition of applications to the Court and the finality of litigation and the requirement that applicant’s receive a fair opportunity to present their case, the failure to provide any explanation for the non-appearance, and the significant delay is, in itself, sufficient to warrant not exercising the discretion to set aside the order made on 3 March 2016.
In this case, a further and perhaps an even more compelling reason, is that the grounds of the originating application lack merit. No useful purpose would be served in granting the reinstatement simply to dismiss the application at a final hearing. In this light, the grounds of the originating application are in the following terms:
“[1] The Second Respondent committed jurisdictional error of law by failing to deal with an integer of the applicant’s claim.
[2] The decision made by the Second Respondent is affected by jurisdictional error.
[3] The Second Respondent did not comply with its obligation to put adverse information to the applicant for comment.”
The background to the application for the protection visa is as derived from the CB as follows. The applicant is a citizen of Indonesia who arrived in Australia on 13 April 2008 as the holder of a student visa (CB 3). He departed Australia on 22 April 2009 and arrived again on 22 May 2009. He remained in Australia since that time (CB 46 and [1] at CB 84). He applied for a protection visa on 13 January 2011. This was refused on 23 February 2011, and the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) affirmed the decision to refuse the protection visa on 6 June 2011 (CB 84).
The application for a protection visa which is the subject of the originating application to the Court was made on 21 February 2014. The delegate accepted this “second” application in light of the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”). At that time, the applicant was represented by a registered migration agent, Mr Songtau Lu.
His claims to protection were that he suffered discrimination because of his Chinese ethnicity. In 2004, while at High School, he joined a youth group which was dedicated to “combating corruption” (CB 30.4). He claimed that he was arrested and detained at a demonstration.
The applicant was invited to, but did not attend an interview with the Minister’s delegate on 21 February 2014. The delegate could not therefore, be satisfied on what was before him, that the applicant satisfied the criteria for the grant of the visa.
The applicant applied for review of that decision to the Tribunal on 28 July 2014 (CB 60 to CB 65). He continued to be represented by the same migration agent. He attended a hearing before the Tribunal on 17 June 2015.
The Tribunal proceeded on the basis that as the applicant had already been assessed against the criterion at s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), its task was to consider the complementary protection criteria (SZVCH).
The Tribunal had concerns about the applicant’s credibility. The applicant raised additional reasons as to why he failed to return to Indonesia, including that he feared harm because of his Christian religion. The Tribunal set out what it describes as “important new claims” (see [9] at CB 85 to [14] at CB 86).
The Tribunal was not persuaded by the applicant’s explanation for failing to mention these important claims in his “first” protection visa application (that is, at a time before the Full Federal Court decision in SZGIZ). The Tribunal found this “reflected poorly on his credibility” ([14] at CB 86).
The Tribunal found that the applicant’s conduct was inconsistent with a genuine fear of harm. The applicant returned to Indonesia in 2008 and delayed applying for a protection visa when he returned in 2009, including for a period when the applicant did not have a valid visa to remain in Australia ([15] at CB 86 to [19] at CB 87).
The Tribunal found the applicant was not a witness of truth and that the account of past events was false ([20] at CB 87). The Tribunal rejected the applicant’s factual account of past harm said to have been suffered by his family, and by him ([21] at CB 87).
The Tribunal relied on country information that the applicant would not suffer significant harm because of his Chinese ethnicity ([22] at CB 88 to [25] at CB 89) or for reason of religion ([26] at CB 89 to [29] at CB 90).
The grounds of the originating application to the Court are reproduced at [47] above. Further, in his affidavit of 20 July 2015, the applicant also asserted that the Tribunal failed to consider his application according to s.424A of the Act.
The first ground asserts that the Tribunal failed to address an integer of his claims. In the absence of particulars and any explanation from the applicant, the ground cannot succeed. On the evidence before the Court the Tribunal did consider all of the applicant’s claims and integers of each claim.
On its face, ground one can only properly be understood as an expression of grievance with the Tribunal’s findings of fact, including findings on credibility. This appeared to be the applicant’s complaint before the Court when given the opportunity to explain ground one. These findings were all reasonably open to the Tribunal on what was before it. In the circumstances, the applicant’s ground lacks merit.
Ground two merely asserts that the Tribunal’s decision was affected by jurisdictional error. In the absence of any particulars, or even explanation now by the applicant, the ground cannot be said to contain such merit as to argue for the reinstatement of the originating application. The applicant’s explanation was that the Tribunal decision “affected” his visa. This complaint lacks any relevant merit.
Ground three asserts that the Tribunal failed in its obligation to put adverse information to the applicant. In this light, the complaint raised in the applicant’s affidavit of 20 July 2015, with reference to s.424A of the Act, provides some particularity to the ground. Before the Court, the applicant submitted that the Tribunal should have explained to him why it believed he was “lying”.
The applicant has not identified what other adverse “information”, he submits the Tribunal did not put to him. In any event, on the evidence before the Court, it is clear that the reason for the Tribunal’s affirmation of the delegate’s decision in relation to the criterion at s.36(2)(aa) of the Act, was that the Tribunal found that the applicant was not a witness of truth. It rejected all the applicant’s factual assertions as to past harm and why he said he feared harm on return.
The Tribunal found that the applicant’s failure to mention his claimed involvement in protests in Indonesia in his first protection visa application reflected “poorly” on his credibility. In my view, the absence of information, an “omission” is not information for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [18]). That is, the Tribunal’s finding that the applicant omitted mention of this matter does not engage s.424A(1) of the Act.
In any event, even if it was caught by the obligation in s.424A(1) of the Act, I agree with the Minister that the Tribunal proceeded on the applicant’s own evidence given to it at the hearing. That is, that he did not mention this claim in the first protection visa application (see
[12] - [13] at CB 86). In this light, if this could be “information” for the purposes of s.424A(1) of the Act, the information fell within the exception at s.424A(3)(b) of the Act.
The Tribunal’s adverse credibility finding and the findings which informed it, were all reasonably open to the Tribunal on what was before it. The Tribunal’s subjective views of the applicant’s claims and evidence are not information for the purposes of s.424A (SZBYR and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 (“SZLFX”)).
For the remainder, the only relevant evidence before the Court, the Tribunal’s decision record, reveals that it relied on country information and the applicant’s claims and evidence provided in writing to the Minister’s department and the Tribunal, and on oral evidence provided by the applicant to the Tribunal. This is all information caught by s.424A(3)(a) and s.424(3)(b) and (ba) of the Act. Ground three, and the complaint in the affidavit therefore, are not matters which argue in favour of reinstating the originating application.
In all, the applicant has not provided a satisfactory explanation for his non-appearance before the Registrar on 3 March 2016, or for the significant delay in seeking reinstatement of his originating application. The grounds of the originating application lack merit such as to say that it is in the interests of justice that they be heard at a final hearing. Nor did the applicant indicate there was anything he could, or wanted to, add to those grounds.
Conclusion
The AIC should be dismissed. I will make the appropriate order.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 22 December 2016
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