Boq18 v Minister for Home Affairs

[2019] FCCA 3841

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3841

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – Application in a Case for reinstatement – applicant failed to appear at scheduled first return date before a Registrar of the Court – Registrar dismissed proceedings under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – reasons provided by applicant for non-appearance before Registrar are inadequate – substantive grounds have no reasonable prospects of success such as to justify an order for reinstatement of the proceeding – Application in a Case for reinstatement dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.2A

Migration Act 1958 (Cth), ss.414, 425, 427, 426A, 441A

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

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

Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98
Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Ponugotti v Minister for Immigration and Border Protection (2015) 144 ALD 365
Sullivan v Department of Transport (1978) 20 ALR 323

Applicant: BOQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 846 of 2018

Judgment of: Judge Dowdy

Hearing date: 23 December 2019

Delivered at: Sydney

Delivered on: 23 December 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms L. Vasan

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application in a Case filed by the Applicant on 13 December 2019 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of and incidental to the Application in a Case in the sum of $2,500.

3. In light of the imminent Court vacation, pursuant to Rule 35.13(b) of the Federal Court Rules 2011 (Cth) the Applicant have in the first instance up to and including 18 February 2020 to file any Application for leave to appeal from orders 1 and 2 above in the Federal Court of Australia, subject to any further extension being granted.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 846 of 2018

BOQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. I am hearing an Application in a Case filed by the Applicant on 13 December 2019 which is supported by her affidavit dated 11 December 2019. The Application in a Case seeks reinstatement of her substantive Application filed in this Court on 28 March 2018 (substantive Application) which was dismissed by Registrar Morgan at its scheduled first return date on 19 April 2018 pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules) because she did not appear.

2. There is presently no Court Book in evidence so, necessarily, the facts and documents before me are limited, but Ms Vasan, who appears for the First Respondent, the Minister for Home Affairs (Minister), has tendered a letter from Sparke Helmore to the Applicant dated 20 April 2018 enclosed various documents which confirmed that she had not appeared on 19 April 2018 and noted her right to bring an application for reinstatement. She did not do this for some 20 months, until the filing of her present Application in a Case.

3. It would appear that the Applicant is a female citizen of China who made an application for a Protection (Class XA) (Subclass 866) visa (Protection visa) on the basis of her adherence to and practice of the Falun Gong religion. A Delegate (Delegate) of the Minister must have refused her Protection visa application, because on 21 February 2018 the Administrative Appeals Tribunal (Tribunal) dismissed her merits review application pursuant to s.426A(1A)(b) of the Migration Act 1958 (Cth) (the Act) due to her failure to appear at the Tribunal hearing appointed for 21 February 2018 (dismissal decision).

4. The Applicant’s substantive Application in this Court had sought to quash and have re-determined in accordance with law the dismissal decision.  What appears to have happened is that the Applicant exercised her right to have the Tribunal consider whether or not her merits review application should be reinstated. At the hearing this morning Ms Vasan has tendered a Decision Record of the Tribunal dated 29 March 2018 (confirmation decision), in which the Tribunal relevantly states at [4], [5] and [6], as follows:

   [4] The applicant applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

   [5] On 28 March 2018 the applicant wrote to the Tribunal asking that she be given another opportunity to attend a hearing of the Tribunal as she had been nervous about the hearing and did not wake up until 9.35 am and therefore did not have sufficient time to get to the Tribunal by the scheduled start of the hearing at 10 am.

   (emphasis added)

   [6] If the applicant genuinely intended to come to the hearing on 21 February 2018 but was overslept and would have arrived late, she could easily have contacted the Tribunal on the day and requested that the start of the hearing be delayed. However, she failed to do or to contact the Tribunal in a timely manner to explain the situation. In these circumstances the Tribunal is not prepared to exercise its discretion to reinstate her case.

   [7]The decision to dismiss the application is confirmed. In these circumstances the decision under review is taken to be affirmed.

5. Accordingly, in my view the substantive Application should be taken in the Applicant’s favour as attacking both of the Tribunal’s decisions, namely both the dismissal decision and the confirmation decision, although the reality is that it is the confirmation decision which she must have set aside.

Factual Findings

1. On the basis of the evidence before me, I find:

   a)the Applicant was invited under s.425 of the Act to a hearing before the Tribunal to be held on 21 February 2018 at 10:00am and she received that invitation and knew of that hearing date and time;

   b)the invitation to that Tribunal hearing advised the Applicant that if she did not attend the hearing, the Tribunal might dismiss her review application without any further consideration;

   c)the Applicant responded to the Tribunal’s invitation on 16 January 2018 by indicating that she would attend the hearing before the Tribunal;

   d)the Tribunal sent two SMS text reminders to the Applicant of the scheduled hearing on 21 February 2018, the first reminder being sent five business days before the scheduled hearing, and the second, one business day before the scheduled hearing;

   e)the Applicant did not appear at the scheduled hearing before the Tribunal and gave to it no reason accounting for her non-appearance;

   f)the Tribunal dismissed the Applicant’s review application on 21 February 2018 pursuant to s.426A(1A)(b) of the Act;

   g)the Applicant thereafter applied to the Tribunal for reinstatement of her review application within 14 days after receiving notice of the decision of 21 February 2018; and

   h)by its confirmation decision the Tribunal then confirmed that the review application was dismissed and accordingly the decision of the Delegate was taken to be affirmed. 

Application in a Case for Reinstatement

1. The Application in a Case for reinstatement is made some 20 months after her substantive Application was dismissed for absence of appearance on 19 April 2018. There is a long period of delay in making the reinstatement application. The explanation for her non-appearance before Registrar Morgan on 19 April 2018 is found at [2] of her affidavit of 11 December 2019, which is verbatim as follows:

   [2] When I lodged my applicantion on 28/03/2018, I was formed that the Time and date: 19/04/2018 ,0:15 AM.

   While waiting for the hearing, I experienced very hard and painful days and nights. My poor child I just born had a high fever and I didn't have a medical card. I can't work so I don't have the money to pay a doctor to treat my child. I had to ask domestic parents to post medicine to treat my child. But the effect was not good, the fever was gone, but my poor child committed another fever in a few days, and my child kept crying at night. I looked after him by day and night. I have completely forgotten your hearing time. On December 7th, a fellow of mine came to see me and asked about the progress of my case. Then I suddenly thought that I missed the hearing time. I deplore it. He helped me go to your court to see what remedies are available. Your kind officials say they can give me a chance. Give two Forms. I asked an English-speaking gentleman from China to fill out the forms at the Cabramatta Library.

   I sincerely appreciate the court officials for giving me this precious opportunity. I will attend the hearing on time.

2. In my view, this is a patently inadequate explanation for her non-appearance on 19 April 2018 and of the period of delay until the filing of her Application in a Case on 13 December 2019.

3. The principles governing an application for reinstatement of an application after it has been dismissed for absence of appearance under r.13.03C(1)(c) of the Rules were stated by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7], as follows:

   [7]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. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

   The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement

   (emphasis added)

4. A similar statement of principle was made by Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] – [6], in the following terms:

   [4]As the Federal Circuit Court Judge noted in her reasons, 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. The latter consideration is important 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.

   [5]  However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), 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.

   [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.

5. Guided as I am by these principles, I find that the Applicant has not given any reasonable excuse or adequate explanation for her failure to attend the Court on 19 April 2018 or her subsequent delay since in seeking reinstatement. I am of the view that whilst there is no evidence that the Minister has been prejudiced by the Applicant’s non-appearance on 19 April 2018 other than with respect to costs, mere absence of prejudice does not of itself militate in favour of a reinstatement order.

6. Further, I am of the view that I do not consider that, if I were to grant reinstatement, the substantive Grounds relied upon in the Application have any reasonable prospects of success, but rather that they would fail in establishing that either of the decisions of the Tribunal were affected by jurisdictional error.

Proposed Substantive Grounds

1. The proposed substantive Grounds relied upon by the Applicant are verbatim as follows:

   1. In order to have a daughter, my mother-in-law introduced me to her cousin, Ms. [omitted] who guaranteed as long as I believed Falun Gong and practise Falun Gong, I would have a beautiful girl. I attended her group to pracitise Falun Gong for which I was arrested by four police persons, sayng I was a reactionary Falun Gong practitioner and an illegal gathering­ practising Falun Gong. We were taken to their station for disciplining. where I was wisped with a leather belt. My husband brought two thousand Chinese dollars to get me on bail. They also threatened mw to await outcome of their assessment. I would face cruel persecution. I had to depart before the sentence was laid down. The officer of DIBP failed to take all my dexperience into account and made a refusal decision. I belived he made a jurisdictional error.

   2. I knew and was already to attend the Hearing of Administrative Appeals Tribunal on 21 Feb. 2018.

   But in the evening before the hearing date, after I went to bed, all I thought was about the Hearing. I had nver attended such a hearing in China. I had no ideal about what would happened? I believe when I faced the officer of the Administrative Appeals Tribunal , I'd fearethat I would suddenly forget what I should reply. I deeply believe that I should be nervous for my first in front of a foreign officer. I thought how to control my sentiment all the night. I almost could not get to sleep. I didn't know what time I got to sleep. While I opened my eyes, I found it was 9:35am 21 march 2018. I was suddenly consciousness of being very late for the Hearing time. I could not get to the Administrative Appeals Tribunal ofice within half hours from Cabramatta. So I was forced to lose the valuable chance.

   I know it was my great error. I sincerly make apology to you. If you'd give me a second hearing opportunity, I'd heartily appreciate your consideration.

Consideration

Proposed Substantive Ground 1 

1. This Ground appears to assert claims to protection. However, the Tribunal never considered the Applicant’s claims on their merits. This Ground does not have any reasonable prospects of establishing that the Tribunal’s dismissal decision is affected by jurisdictional error.  It simply fails to grapple relevantly at all with the nature of, and reasons for, either the Tribunal’s dismissal decision or confirmation decision.

Proposed Substantive Ground 2

1. This proposed Ground also has no reasonable prospects of success. In effect it asserts that as a result of nervousness the Applicant woke up too late to get to the Tribunal hearing on 21 February 2018. In my view, this Ground also has no reasonable prospects of establishing that the Tribunal’s decisions are affected by jurisdictional error. I shall take the Ground as asserting and attacking as legally unreasonable the Tribunal’s dismissal decision and the later confirmation decision. The exercise of a discretionary power of such a kind is subject to judicial scrutiny in order to determine whether the discretionary power was exercised in a legally reasonable way: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and such scrutiny is to be guided by the terms, scope and policy of the Act and common law principles: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 5 [9].

2. Under s.427(1)(b) of the Act, the Tribunal has the power to adjourn a review from time to time. The Tribunal is exhorted by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a way that is “fair, just, economical, informal and quick”. However, these discretionary powers to adjourn a hearing or to proceed with a hearing and to operate economically, informally and quickly must be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.414 of the Act to review decisions and give the relevant applicant a meaningful opportunity and a real chance to appear and to present evidence and arguments pursuant to the invitation extended under s.425.

3. In my view, the Tribunal’s dismissal decision was not legally unreasonable, did not “lack an intelligible justification” and was not “irrational” or “illogical”. In particular, this is the case because eo instanti it afforded to the Applicant the opportunity to seek reinstatement of her review application within 14 days. In my view, the Tribunal gave to the Applicant a more than sufficient opportunity to argue and propound her merits review application. The hearing date of 21 February 2018 was, in the words of Hill J in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 at 102 [14] “one of the most important appointments in [her] life”. The Applicant was under a personal responsibility to attend in aid of her application for review if she was not precluded for good reason. As Barker J in Ponugotti v Minister for Immigration and Border Protection (2015) 144 ALD 365 said at 372 [56], referring to proceedings before the then Migration Review Tribunal:

   [56]What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.

4. In my view, it could not be said that no rational or logical decision-maker could have arrived at the decisions which the Tribunal reached in this case.  There was an intelligible justification for the Tribunal deciding to proceed in the way that it did because it had a “genuinely free discretion” or “decisional freedom” to make the decisions and in that regard its decision did not fall outside of the range of possible acceptable outcomes: see Wigney J in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at 650 [52].

1. The Tribunal simply could not properly administer its caseload if applicants could act in the way that the Applicant has with respect to her application for review by not appearing on 21 February 2018. As Deane J pointed out in Sullivan v Department of Transport (1978) 20 ALR 323 at 343 the Tribunal must give any applicant a reasonable opportunity to present his or her case, but there is no obligation imposed on the Tribunal to engage in “the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”.

2. Whilst it may be accepted that the Applicant may have been nervous before the scheduled Tribunal hearing, that applies to all applicants for visas and the vast majority of applicants are able to overcome any fears and appear before the Tribunal to present their case. Most participants in legal or administrative hearings suffer from some degree of nervousness, including the lawyers at the hearing. There is no evidence before the Court, medical or otherwise, that has any tendency to suggest that any nervousness or anxiety that the Applicant may have suffered from made it impossible for her to meaningfully participate in the Tribunal hearing. On 16 January 2018 the Applicant responded to the Tribunal’s s.425 invitation by indicating that she would attend the hearing, but there is no explanation for her failure to contact the Tribunal prior to or on the scheduled hearing date to seek an adjournment or to ask the Tribunal if she could appear at the hearing by telephone.

3. The Applicant admits that she knew of the hearing scheduled for 21 February 2018. She was sent two SMS text reminders and she never contacted the Tribunal to explain her non-appearance or to seek any adjournment. In my view, she only had herself to blame for losing the legal right given to her under the Act to appear before the Tribunal to give evidence and present arguments in support of her review application on that occasion.

4. The confirmation decision of the Tribunal is also, in my view, not legally unreasonable. The Tribunal set out in its Decision Record (see [4] above) the basis for its confirmation of the dismissal which included the matters that I have earlier referred to in this judgment as supporting the legal reasonableness of the dismissal decision.

5. It is clear that the Tribunal did not accept that the Applicant had provided a reasonable explanation for not appearing at the scheduled hearing on 21 February 2018 to the effect that she had “been nervous about the hearing and did not wake up until 9:35am and therefore did not have sufficient time to get to the Tribunal by the scheduled start of the hearing at 10:00am”. At [6] of its confirmation decision the Tribunal took into account the fact that the Applicant had failed to attempt to make any contact with the Tribunal to explain her claim or reasons for her non-attendance. The workload of the Tribunal would be impossible if applicants could obtain adjournments or excuse a failure to attend hearings before it merely on the basis of general nervousness or waking up late on the day of the scheduled hearing, and more particularly so when the relevant applicant makes no attempt to contact the Tribunal to explain the position.

6. In my view the Tribunal’s decision, to the effect that it was not satisfied in the circumstances that the Applicant had a reasonable excuse for not attending the hearing on 21 February 2018, conformed to the standard of legal reasonableness and was not arbitrary, capricious, without common sense or plainly unjust. Whilst it is conceivable that a differently constituted Tribunal may have taken a different view and allowed reinstatement of the review application, in the circumstances applicable to the Applicant’s failure to appear on 21 February 2018 it cannot be said that no Tribunal could have come to the decision which the present Tribunal did in its confirmation decision of 29 March 2018.

Conclusion

1. The Applicant has failed to establish that there would be any utility in the reinstatement of her substantive Application and her Application in a Case filed in this Court on 13 December 2019 is to be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  4 February 2020