BRA15 v Minister for Immigration
[2016] FCCA 2147
•6 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRA15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2147 |
| Catchwords: MIGRATION – Application in a case to set aside an order of the Registrar dismissing the application for nonappearance. |
| Legislation: Migration Act 1958 (Cth), ss.65, 424A. |
| Cases cited: Akpata v Minister for Immigration and Multicultural Affairs [2005] FACFC 250 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 MZABP v Minister for Immigration andBorder Protection [2015] FCA 1391 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SZTES v Minister for Immigration and BorderProtection [2015] FCA 719 |
| Applicant: | BRA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1894 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 15 August 2016 |
| Date of Last Submission: | 15 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 6 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Solicitors for the Respondents: | Ms Mitchel of Clayton Utz |
ORDERS
The Application in a Case filed 3 March 2016 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $2242.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1894 of 2015
| BRA15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
On 17 August 2015 the applicant filed an application to review a decision of the Tribunal made on 20 July 2015. The Tribunal had affirmed a decision of the delegate not to grant a protection visa pursuant to s.65 of the Migration Act 1958 (“the Act”). The applicant is a citizen of Nepal who first arrived in Australia on a visitor visa but who became an unlawful citizen on 21 October 2012.
The first respondent's outline of submissions accurately sets out the background to the review application. With references to the court book omitted, I reproduce same below:
5. On 17 September 2013, the applicant applied for a Protection (class XA) visa (visa). He claimed that as a teenager, he had a relationship with a girl of lower caste, who became pregnant. His family refused to allow him to marry her, and her family subsequently took the girlfriend to have an abortion after which she committed suicide. The applicant claimed that before and after that time he received threats and his father and brother were attacked by his girlfriend's family and caste.
6. The applicant attended an interview with a delegate of the Minister on 16 June 2014.
7. On 18 June 2014, the delegate decided to refuse to grant the Visa. In summary, the delegate did not accept the applicant's factual claims as credible and therefore did not accept that he would face persecution or significant harm on return to Nepal. The delegate also found that the applicant had an existing, legally enforceable right to enter and reside in India, and therefore that s.36(3) of the Migration Act 1958 (Cth) (Act) applied.
8. On 8 July 2014, the applicant applied to the Tribunal for a review of the delegate’s decision with the application.
9. By letter dated 15 April 2015, the Tribunal invited the applicant to a hearing on 19 June 2015. The applicant attended that hearing with the assistance of a Nepali interpreter.
10. On 20 July 2015, the Tribunal affirmed the delegate’s decision.
The Application set out four grounds of review which were (with minor corrections for sense):
1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written (sic) to make comments, in order to fully comply with section 424A as decided by the majority in the High Court Case of SAAP.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived at in accordance with the requirements of the Migration Act.
3. The applicants satisfy the four key elements of the Convention definition as detailed on page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
4. The AAT has failed to investigate the applicant’s claims, especially the ground of persecution, in India (Sic). Therefore, the Tribunal decision dated 21 July 2015 was affected by actual bias constituting judicial error.
A directions hearing was fixed for 3 February 2016 and the applicant failed to appear on that day. Orders were made by Registrar Caporale on that date;
a)dismissing the application; and
b)ordering that the applicant pay the first respondent’s costs.
On 3 March 2016, the applicant filed an application in a case seeking orders to set aside the order dated 3 February 2016, dismissing the application.
The applicant filed an affidavit in support of his application, affirmed 23 February 2016. Omitting irrelevant parts, that affidavit provided:
1. I am an Indian citizen arrived in Australia and applied for the protection visa. The delegate of the Minister and the Tribunal member refused to grant my Visa. I apply for judicial review in the Federal Circuit Court. I was not represented by any solicitor or barrister. Therefore, I am not fully aware of the legal consequences of the court hearing. Please consider my application in the light of the above circumstances.
2. I could not attend court on the designated day because
I have severe illness and I forgot my court date in my illness.
The applicant’s application in a case was listed for hearing on
15 August 2016 and he attended the court, unrepresented but with the assistance of a Nepalese interpreter. The applicant was invited to give sworn evidence in support of his application and he took up that invitation.
The applicant gave evidence that he was aware that the matter had been listed, but he had given all the details of the case to his friend who he worked with on a farm in Mildura.
The applicant gave evidence that:
a)his friend had been giving him some assistance with his application;
b)that he was able to read English;
c)in relation to his illness, he said that he was sick with diarrhoea but that he would have been able to attend on the date that it was listed for hearing, had he known that it was on;
d)he did not attend a doctor in relation to his illness; and
e)he had received a letter in relation to the importance of attending the directions hearing from the solicitors for the Minister dated 21 August 2015.
Consideration
The merit of the substantive application is assessed by asking whether the ground is arguable: consider SZTES v Minister for Immigration and BorderProtection [2015] FCA 719 and MZABP v Minister for Immigration andBorder Protection [2015] FCA 1391 (MZABP) (each decision was considered on appeal without the principles articulated at first instance being relevantly disturbed, see further SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 and MZABP v Minister for Immigration and BorderProtection [2016] FCAFC 110).
The first respondent objects to the grant of an extension of time because the delay is considerable, the explanation is not acceptable and the judicial review application is so lacking in merit that it is not
" necessary in the interests of the administration justice" to extend time.
The law on extensions of time
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Hunter Valley), Wilcox J articulated a number of factors that may be considered in the exercise of that Court's discretion to extend the time for filing a notice of appeal. These factors have been applied to the question whether to extend time pursuant to sub-s.477(2) of the Act in this Court: see further MZABP at [58] per Mortimer J.
Accordingly, the Court may determine the application for an extension of time having regard to the factors identified in Hunter Valley, including that:
a)applications for an extension of time are not be granted unless it is proper to do so;
b)the legislative time limits are not to be ignored;
c)there must be some acceptable explanation for the delay;
d)any prejudice to the respondent in defending the proceeding;
e)the mere absence of prejudice to the respondent is not enough to justify the grant of an extension; and
f)the merit of the substantive application and whether the ground is arguable.
Reasons for Nonappearance
In my view, the applicant’s reasons for his nonappearance at the directions hearing are inadequate. The applicant was notified of the listing of the directions hearing when he lodged the application. The date of the directions hearing and the importance of attending were confirmed in correspondence which he received from the solicitors for the respondent. His excuse, that he was relying on assistance from a friend, did not adequately explain why he did not take steps himself to ensure that he attended the hearing. As Branson, Finn and Mansfield JJ set out in Akpata v Minister for Immigration and Multicultural Affairs[1] at [13]:
On such an application Mr Akpata would, in a matter such as this, have had to show he had an arguable case in the principal proceeding and to explain his absence at the hearing.
[1] [2005] FCAFC 250.
The applicant’s evidence in relation to his illness confirmed that that he was able to attend and would have attended the hearing had he taken reasonable steps to ensure that he attended on that day.
The delay in making an application to set aside
The Minister does not rely on the delay of approximately 28 days between the making of the order and the application to set aside.
No prejudice was referred to by the Minister, however that is insufficient to warrant the setting aside of the order in light of the lack of the applicant’s adequate explanation for his nonappearance.
Merits of the Substantive Application for Review
In my view, no arguable case or question was raised such as to warrant the setting aside of the order. With regard to the first ground set out in the Grounds of Review by the applicant, it was permissible for the Tribunal to comply with its obligations under s.424A of the Act by putting relevant information to the applicant orally at the hearing under s.424A rather than in writing. I note that the applicant attended the Tribunal and was assisted by an interpreter. The applicant was provided with three weeks’ time after the hearing to provide any response to the matters that had been raised with him at the hearing. No response was provided by him. In those circumstances, no error of the type raised by the first ground can be made out.
The applicant’s second ground alleges a failure by the Tribunal to arrive at a state of reasonable satisfaction in making its decision. Having regard to the terms of the decision, the fact that the Tribunal canvassed the claims made by the applicant, considered them in detail and then provided a detailed and considered reasons, it cannot be said that the decision is so unreasonable that it could only be seen as illogical or irrational and therefore beyond the Tribunal’s jurisdiction.[2]
[2] See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]– [131] per Crennan and Bell JJ.
Assuming the applicant’s reference to claims of persecution in “India” in Ground Three is a reference to “Nepal,” there is no basis to the allegation that the Tribunal’s decision fails to disclose a careful and comprehensive consideration of the applicant’s claims and evidence. In terms of the Tribunal’s findings in relation to the credibility of the applicant, there is no proper basis identified to interfere with that finding.
In relation to the fourth ground that the Tribunal was affected by actual bias constituting legal error, no basis for asserting that ground has been pointed to. From reading the material, there is no actual bias disclosed in the Tribunal’s written reasons. As was submitted by the first respondent, it is only in the rare and extreme cases that actual bias will be disclosed by the Tribunal’s written reasons only.[3]
[3] SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [43] –[44].
In these circumstances, the application shall be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 6 October 2016
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