BQN18 v Minister for Home Affairs
[2019] FCCA 2149
•23 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQN18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2149 |
| Catchwords: MIGRATION – Application for reinstatement – applicable principles – where applicant does not meet threshold of demonstrating arguable grounds of review – where no other discretionary consideration favours grant of relief – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 Migration Act 1958 (Cth), ss.36, 65 |
| Cases cited: AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 BAL17 v Minister for Immigration and Border Protection [2018] FCA 792 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 |
| Applicant: | BQN18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 910 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 23 July 2019 |
| Date of Last Submission: | 23 July 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 July 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Young |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The Application in a Case filed on 9 April 2019 be dismissed.
The applicant pay the costs of the first respondent fixed at $1000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 910 of 2018
| BQN18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore Revised from Transcript)
Introduction
By application dated 3 April 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 March 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant her a Protection (subclass 866) visa pursuant to s 65 of the Migration Act 1958 (Act).
The application was dismissed by order made on 20 March 2019. The applicant now seeks to reinstate her application. The application for reinstatement should be refused on the substantive basis that the applicant’s stated grounds of review are not reasonably arguable.
Background
The applicant, a Malaysian citizen of Muslim faith, aged 42 years, first came to Australia on 14 August 2016 then holding a visitor visa. Before coming to Australia, she had worked in Malaysia as an operations specialist until October 2015, but thereafter had been unemployed.
It further appears that the applicant was married, but separated in 2010. The applicant listed no family members in her visa application.
Claims to protection
In her visa application, the applicant outlined her claims to protection quite briefly. But, in essence, she claimed that due to her participation in a political rally, she had been beaten on two occasions by a gangster, whom, she claimed, had been sent to do so by the Malaysian Government. The applicant claimed that because of her involvement in the political rally, the Government “would not stop to bring me down.” However, the applicant provided no documents or other evidence in support of those claims.
Delegate’s decision
On 10 March 2017, a delegate of the Minister refused to grant the visa and gave reasons for so doing. The delegate noted that the applicant had a very low level of engagement in Malaysian politics, and held no political opinion to motivate her to engage in political activities.
The delegate concluded that the applicant was not a person in respect of whom Australia owed protection obligations, either as a refugee under s 36(2)(a) of the Act or by way of complementary protection under s 36(2)(aa) of the Act.
Tribunal’s decision
On 16 March 2017, the applicant applied to the Tribunal for a review of the delegate’s decision refusing her visa application.
On 13 October 2017, the Tribunal invited the applicant to attend a hearing on 3 November 2017 in order that she might have an opportunity to give evidence and present arguments relating to the decision under review.
On 2 November 2017, the applicant sent an email to the Tribunal requesting that the hearing be rescheduled and transferred to the Griffith registry. The applicant’s email stated that she did not have a car or money and that “my condition is too bad.” The Tribunal rescheduled the hearing to Griffith in accordance with the applicant’s request. On 16 January 2018, the applicant appeared at a hearing before the Tribunal, doing so with the aid of a Malay interpreter.
At the hearing, the applicant provided the Tribunal with a number of documents from NSW Police; being documents relating to a series of offences which the applicant was alleged to have committed contrary to ss 61 and 195(1)(a) of the Crimes Act 1900 (NSW). The documents supplied by the applicant indicated that she had been charged with intentionally or recklessly destroying or damaging property and with common assault. The offences with which the applicant was charged arose from a domestic dispute. The documents supplied by the applicant indicated that orders were made on 25 September 2017 in the Griffith Local Court which, in effect, disposed of the charges against the applicant on the basis that she enter into conditional bail to be of good behaviour.
When questioned by the Tribunal about the relevance of those documents, the applicant responded that although she had been wrongly accused, she required more time to stay in Australia in order that she could repay her lawyer.
On 9 March 2018, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations, and affirmed the delegate’s decision to refuse the visa. A statement of reasons for that decision was provided (Reasons).
Procedural history
On 3 April 2018, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit to which she exhibited a copy of the Reasons but adduced no further evidence in support of her application. The affidavit merely deposed:
There’s error in my decision.
To review my application.
The application for judicial review was filed in the Sydney Registry.
By a response filed on 26 April 2018, the Minister opposed the application on the stated basis that it failed to raise an arguable case for relief and/or did not establish any jurisdictional error in the Tribunal’s decision. An order was sought that the application be dismissed with costs.
On 26 April 2018, orders were made listing the matter for directions. This order was made in circumstances where the applicant did not appear at the directions hearing on that date. In compliance with an order made on 26 April 2018, the solicitors for the Minister notified the applicant, both by Express Post and email, that the proceeding had been adjourned for directions on 10 May 2018.
On 7 May 2018, the applicant emailed the Minister’s solicitor requesting that the matter be transferred to the Melbourne Registry for the reason that she was now residing in Victoria.
On 9 May 2018, orders were made, by consent, which vacated the directions hearing listed to occur the following day (10 May 2018) and transferring the proceeding to the Melbourne Registry. The applicant was ordered to file a notice of address for service indicating her new address in the state of Victoria. The applicant complied with that order.
On 18 May 2018, the parties were notified by the Melbourne Registry that the matter was listed for directions on 20 March 2019. Shortly before that date, on 13 March 2019, the applicant sent an email to the Minister’s solicitor stating that she would not be able to attend the directions hearing, and requested that it be adjourned or that a procedural timetable be prepared and orders be made by consent. However, the applicant received an automatic reply to her email stating that the solicitor to whom she had sent it was on leave and that further inquiries should be directed to another solicitor who was named.
On 13 March 2019, the applicant resent her original email to that other solicitor.
On 14 March and again on 18 March 2019, the Minister’s solicitors telephoned the applicant and left messages on her voicemail requesting that she call them back. It seems that she did not do so.
On 19 March 2019, the applicant sent an email to the court attaching a copy of her earlier email sent to the Minister’s solicitors on 13 March 2019. The court responded to this email administratively, stating that the matter could not be adjourned unless consent orders were made.
The applicant failed to appear at the directions hearing on 20 March 2019. Orders were made pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules).
On 9 April 2019, the applicant filed an Application in a Case seeking an order for the reinstatement of her application. The applicant also filed an affidavit in support to which she annexed a number of emails being proof of her communications with the Minister’s solicitors (and with the court) requesting that the directions hearing be adjourned.
Although it is not entirely clear, it seems that the applicant had not served the Minister’s solicitors with her Application in a Case, or perhaps, had not done so in a timely way. In all events, on 20 June 2019, the Minister’s solicitors variously filed an affidavit to which was exhibited the various communications which had passed between the parties and other documents, together with an outline of submissions.
When the matter was called on for hearing on 21 June 2019, counsel appeared on behalf of the applicant. It emerged that counsel had been in possession of the relevant court papers for a very short period of time before that hearing. Following discussion with the applicant’s counsel and the Minister’s solicitor, orders were made adjourning the matter to 23 July 2019 and further orders were made which afforded the applicant an opportunity to file and serve a proposed amended application with properly particularised grounds for review, together with submissions addressing the application for reinstatement and the merits of the proposed grounds in the amended application. In the event, no proposed amended application, nor any further particularised grounds of review or submissions were filed and served on behalf of the applicant.
On 23 July 2019, the applicant appeared before me and was then self-represented.
Reinstatement
Where an applicant does not appear at a hearing, the Court may dismiss the application: r 13.03C(1)(c).
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, such a power is not automatic but calls for the exercise of that discretion: cf. Gallo v Dawson.[1] Inherent in the conferral of a discretionary power is an assumption that some applications may be refused: Jackamarra v Krakouer.[2] The principles that govern the court’s exercise of power under r 16.05(2)(a) in relation to an application for reinstatement of a matter following dismissal in the absence of an applicant were considered in MZYEZ v Minister for Immigration and Citizenship. There, Ryan J stated:[3]
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:[4]
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)[5]
[1] (1990) 93 ALR 479, 480 (McHugh J).
[2] (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J).
[3] [2010] FCA 530, [7].
[4] (2005) FCA 1066, [18].
[5]Applied also by Perry J in BEN15 v Minister for Immigration and Border Protection [2016] FCA 211, [17].
More recently, in CAL15 v Minister for Immigration and Border Protection,[6] 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 AAI15 v Minister for Immigration and Border Protection.[7]
[6] [2016] FCA 1344, [4].
[7] [2018] FCA 1110, [29] (Tracey J).
The waste of scarce court resources is not an irrelevant consideration: MZAKQ v Minister for Immigration and Border Protection.[8]
[8] [2016] FCA 1392, 11 (Logan J).
Applicable threshold
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 are shown to be “arguable”: CAL15, [5] citing MZABP v Minister for Immigration and Border Protection.[9] 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. 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)
[9] [2015] FCA 1391, [62].
It is clear that the discretion conferred under the rules to allow reinstatement is a broad one: see Savrimootoo v Minister for Immigration and Border Protection.[10]
[10]Savrimootoo v Minister for Immigration and Border Protection [2018] FCA 1167, [47] (Mortimer J).
It follows that, upon an application for reinstatement, which requires the court to consider whether a grant of review is arguable, the test 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 J, Evatt and McTiernan JJ in House v The King;[11]BAL17 v Minister for Immigration and Border Protection.[12]
[11] House v The King (1936) 55 CLR 499, 504-505.
[12]BAL17 v Minister for Immigration and Border Protection [2018] FCA 792, [10] (Bromwich J).
Length of delay and explanation
The applicant’s grounds for reinstatement of her application and for setting aside the order made on 20 March 2019 dismissing it are stated as follows:
1. I am the applicant in this matter.
2. I did not attend a first mentions date in my federal circuit court matter on 20 March 2019.
3. This is because I live many hours away from the court and could not find the arrangements necessary to take me to Melbourne. I had also problems seeking leave from work because of a recent change in employment.
4. I have previously corresponded with Sharon Sanga µ-om the Respondent on this matter. She told me she was handling this matter.
5. On 13 March 2019, I contacted the Respondent's solicitor, Sharon Sanga of Mills Oakley Lawyers by email to inform her r would not be able to attend the scheduled court date on 20 March 2019. I requested her to assist me change the court date or to have a timetable for the rest of the court matter. On the same date I received an automatic reply from her office saying Sharon Sanga was on leave and that all inquiries should be directed to Ada Wong. Annexure 1 is the email exchange with Sharon Sanga on 13 March 2019.
6. On 13 March 2019, I contacted Ada Wong of Mills Oakley Lawyers as per the instructions I received from Ms Sanga's automatic email reply. Annexure 2 is the email I sent to Ada Wong on 13 March 20I9.
7. I did not receive a reply from Ms Ada Wong for several days.
8. On the morning of 19 March 2019, my employer confirmed I could not leave my place of work unless I wanted to get fired.
9. At 12.40pm on 19 March 2019, I sent an email to the Victorian Federal Court registry explaining my workplace situation and therefore my inability to attend the hearing on 20 March 2019. I also forwarded the proof of my attempts to contact the government lawyers and asked for another date to come into court. I received a reply from the registry at 5 .1 0prn on the same day. The registry gave me the name of another lawyer I needed to contact. Annexure 3 is the email exchange with registry and myself.
10.On 19 March 2019, I emailed the third government lawyer Rohan advising him of my attempts to contact his firm regarding this matter. I wanted to get agreed consent orders we can forward to the court.
11.Till this date r still have not received any reply from Rowan, Ada or Sharon. I have had no support from the registry to have this matter reinstated.
12.I believed the government lawyers would have been courteous enough to assist me in this matter given that I have given them over a week in notice of my problems. 1 expected them to assist me without having to waste this court's precious time.
13.I do not know whether the Respondent will agree to me re-listing the matter because they have not responded to my emails.
Contrary to the Minister’s submissions, I am persuaded that the applicant did have a reasonable explanation for the circumstances in which she did not appear at the directions hearing. It is clear from the procedural history outlined above that the applicant and the Minister’s solicitors had been in not infrequent email communication, both while the proceeding was in the Sydney Registry, the Griffith Registry and then the Melbourne Registry of the court.
A striking feature of the parties’ communications is that while the applicant communicated successfully with the Minister’s solicitors by email, for reasons which are not apparent attempts to communicate with the applicant were, relevantly, made by telephone, rather than by email. It was clear that the applicant was quite prepared to agree in procedural orders which would have made arrangements for the matter to be prepared for a full hearing and so obviate the need for any attendance at that, most recent, directions hearing.
Prejudice
I do not consider that any relevant delay is demonstrated in the circumstances.
Nor do I consider that any prejudice to the Minister has been demonstrated in the circumstances.
Arguable case
The application filed on 3 April 2018 contained the following grounds:
There is an error in my application.
Decision is made without solid proof.
It is requested to send my application to Administrative Appeals Tribunal for reconsideration.
As stated above, on 21 June 2019, the applicant was represented by counsel and on that day the court afforded her an opportunity to file a proposed amended application with properly particularised grounds together with written submissions in support of the application. For reasons that were not explained, none of those steps were taken.
It is clear, in my opinion, that the stated grounds of review are wholly devoid of specificity so as to enable the court to identify any ground of review. The application was liable to be dismissed for want of particularity alone.
However, and more fundamentally, an examination of the Tribunal’s Reasons discloses further bases for concluding that the grounds of review are not arguable. While the applicant’s original grounds for seeking a Protection visa relied upon her supposed involvement in a demonstration and claims to having been beaten by gangsters working at the behest of the ruling party, those allegations were, in effect, abandoned at the Tribunal hearing.
Instead, the applicant claimed that she had travelled to Australia with the object of escaping problems concerning her former husband and their children: Reasons [15]. In particular, as the Reasons record, the applicant expressly responded to inquiries at the hearing that her claims “were all false and that an agent had helped her”: Reasons [18].
The applicant’s claims were thus found not to be credible. Nor did the Tribunal accept that her claims to fear harm if returned to Malaysia were credible. I have examined the whole of the Reasons, which contain a series of criticisms that were, in substance, findings of recent invention: see, eg, Reasons, [24], [26], [27] and [28].
At the hearing before me, the applicant appeared without the assistance of an interpreter. To my observation, each of the applicant’s responses to my inquiries were considered. However, the applicant had very little to say in relation to her application but stated, when asked to identify what serious error had been made by the Tribunal, “I don’t say anything about error” and when asked if she had anything further to add, replied, “there is nothing I want to say.”
I am not satisfied that the applicant has met the low threshold of demonstrating that her grounds of review are arguable in the requisite sense. It follows that the application for reinstatement should be refused.
For the reasons above, the application for reinstatement filed on 9 April 2019 is dismissed with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 23 July 2019
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