BVG16 v Minister for Immigration
[2017] FCCA 2641
•31 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVG16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2641 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – application for reinstatement of an extension of time application that was dismissed for non-appearance – adequate explanation for nonappearance – no reasonable prospect of success in the substantive application – application dismissed. |
| Legislation: Migration Act 1958, s.36(2B)(c) Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a) |
| Cases cited: SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 |
| Applicant: | BVG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1524 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 28 August 2017 |
| Date of last submission: | 3 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2017 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Ashlee Briffa |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The application in a case filed on 16 August 2017, in which the applicant sought the reinstatement of an application for an extension of time, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1524 of 2016
| BVG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 16 August 2017 for reinstatement of a proceeding that was dismissed for non-appearance on 21 July 2017 pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“the Rules”). The proceeding that is sought to be reinstated is an application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection visa.
The hearing of the reinstatement application before this court was on 28 August 2017. The decision of the court on the reinstatement application was reserved pending the decision of the High Court on appeal from the decision of the Full Court of the Federal Court in SZTAL v Minster for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69. The High Court has now handed down its decision affirming the decision of the Full Court of the Federal Court. The citation of the High Court’s decision is SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.
On 28 August 2017, orders were made in the present proceeding permitting the Minister to file written submissions following the delivery of the High Court’s judgment in SZTAL. The applicant indicated to the court that he did not wish to file written submissions in relation to SZTAL. The Minister filed post-hearing written submissions on 3 October 2017.
Approach to reinstatement applications
In considering an application for reinstatement of a proceeding that has been dismissed for non-appearance, the court must consider:
a)the length of the delay between the dismissal and the filing of the application for reinstatement;
b)the reasons for the non-appearance and for the delay in filing the application for reinstatement;
c)any prejudice to any party; and
d)the prospects of success of the application sought to be reinstated.
Approach to extension of time applications
In the present case, the application sought to be reinstated is an application for an extension of time in which to file an application for review of the Tribunal’s decision. In considering an application for an extension of time, the court must consider:
a)the length of the delay between when the application for judicial review should have been filed and when the application for an extension of time was filed;
b)whether the explanation for the delay is adequate;
c)any prejudice to the respondent if the application for an extension of time were granted;
d)any prejudice to the applicant if the application for an extension of time were not granted;
e)the public interest in the finality of decisions of public office holders; and
f)the prospects of success of the substantive application.
The reinstatement application
The applicant filed the application for reinstatement on 16 August 2017. That was about three weeks after the proceeding had been dismissed.
In his affidavit in support of his application for reinstatement filed on 16 August 2017, the applicant said that:
a)he filed his application to review the decision of the Tribunal on 18 July 2016;
b)he did not understand there would be a directions hearing at the court that he was personally required to attend to obtain his final hearing date;
c)he did not know that there would be a directions hearing on 21 July 2017 or a call over that he was required to attend failing which his matter would be dismissed for non-appearance;
d)he is unable to afford the costs of $5,000 ordered against him for non-appearance, as he is a refugee seeking protection and has very limited financial resources;
e)he is desirous of and serious about carrying on his case and would like the opportunity before this court at a final hearing to explain why the Tribunal erred and why he should be granted a new hearing before the Tribunal; and
f)he will be severely disadvantaged if the court’s orders made on 21 July 2017 are not set aside pursuant to r.16.05(2)(a) of the Rules as he will have no other avenue to seek justice.
The hearing on 21 July 2017 was not a directions hearing or a call over. It was the hearing of the applicant’s application for an extension of time in which to file his application for review of the Tribunal’s decision.
On 21 December 2016, a registrar made orders by consent listing the matter for final hearing on a date to be advised. The reference to a final hearing was in error as the hearing was to deal with the application for an extension of time.
On 7 March 2017, the court sent a notice of listing to “The applicant” at 2A Dew Point Crescent, Hampton Park VIC 3978. That was the applicant’s correct address as disclosed on his application for an extension of time. However, the notice of listing was not addressed in the applicant’s own name but was only addressed to “The applicant”. In addition, the notice of listing said that the matter was being listed for a final hearing when in fact it should have been listed for the hearing of the extension of time application. The application for the extension of time did not include an email address for the applicant.
During the hearing of the reinstatement application on 28 August 2017, the applicant told the court that he had moved house six months previously. That would have been in about February 2017. The notice of listing was not sent until 7 March 2017. Consequently, it is possible that the applicant had moved out of his nominated address prior to the notice of listing being sent.
The applicant was asked why he did not notify the court of his new address. He said that he had not done so because his friends were still living at the Dew Point Crescent address and he would go there on weekends and check for letters. If that is so, the applicant could have been expected to have received the notice of listing, except that it was addressed to “The applicant” rather than being addressed in his own name.
The applicant also told the court on 28 August 2017 that a Samoan person had been involved in a fight at the Dew Point Crescent address and broken the whole house including the mailbox. The applicant said the fight happened about three months earlier, which would have been in about May 2017. Given the timeline, the fight could not have had any bearing on whether or not the applicant received the notice of listing.
In my view, the applicant bears some responsibility for not receiving the notice of listing because he did not provide the court with an email address and he did not update his residential address with the court when he changed residential address in about February 2017. However, I also consider that the court contributed to the applicant’s non-attendance on 21 July 2017 by addressing the notice of listing to “The applicant” rather than to the applicant in his own name. Clearly, in a situation where the applicant was sharing his house with a number of friends, there was a real risk that a letter addressed to “The applicant” would not come to the applicant’s attention.
For these reasons, I consider that the applicant had an adequate explanation for not attending court on 21 July 2017 when the extension of time application was dismissed.
The Minister did not point to any prejudice to him if the extension of time application were reinstated. Clearly there would be significant prejudice to the applicant if the extension of time application is not reinstated.
I turn now to a consideration of the prospects of success of the application being sought to be reinstated, being the extension of time application.
Extension of time application
The extension of time application was filed about 13 days late. The Tribunal made its decision on 31 May 2016 and the application was not lodged in this court until 18 July 2016.
The applicant explained in his affidavit affirmed on 18 July 2016 that:
a)he received the Tribunal’s decision on 31 May 2016 via email;
b)he did not have a lawyer at the time;
c)a few days later, he was told his Centrelink benefits were about to cease;
d)on 30 June 2016, the Department of Immigration and Border Protection (“DIBP”) advised the applicant that his bridging visa had ceased on 28 June 2016 and advised him to attend a DIBP office;
e)the applicant attended a DIBP office on 7 July 2016;
f)the applicant asked an DIBP officer about judicial review;
g)the DIBP officer said there was no point in seeking judicial review because the court would simply agree with the Tribunal;
h)on 14 July 2016, the applicant obtained an appointment with the Asylum Seeker Resource Centre on 18 July 2016; and
i)the applicant filed his application with the court later on 18 July 2016.
The application contains generic grounds with no particulars.
The Minister did not point to any prejudice if an extension of time is granted. Clearly, there would be substantial prejudice to the applicant if an extension of time is not granted.
I turn now to a consideration of the prospects of success of the judicial review application.
Claims
The applicant is a Sinhalese citizen of Sri Lanka. He claimed to fear harm from:
a)the Sri Lankan authorities because he had been involved in illegal conch fishing; and
b)a loan shark who had lent money to his father.
The delegate’s decision
The delegate accepted that:
a)the applicant’s father had borrowed money from a loan shark in January 2004 and had been unable or unwilling to repay the debt in full;
b)the applicant and his parents and siblings had unsuccessfully applied for asylum in the United Kingdom in 2004;
c)the applicant’s father had undertaken illegal conch fishing;
d)the applicant worked as a fisherman’s assistant from December 1999 until 24 July 2012;
e)on 27 July 2012, the applicant departed Sri Lanka illegally by boat and travelled directly to Australia;
f)the applicant’s father was held on remand from 28 August 2013 until 21 November 2013; and
g)the applicant’s father appeared before a Magistrates’ Court on 21 November 2013 but had not been sent to prison.
The delegate did not accept that:
a)the applicant was coerced by a loan shark to participate in illegal conch fishing;
b)the applicant was wanted by the Sri Lankan police or the Sri Lankan army because he had participated in illegal conch fishing; and
c)the applicant was in hiding in Sri Lanka from June 2011 to July 2012.
The delegate considered that the applicant had fabricated his claims that he was wanted by the police and that he was in hiding from June 2011 to July 2012. The delegate did not accept that the applicant faced a real risk of substantial or significant harm if he were to return to Sri Lanka.
The Tribunal’s decision
The Tribunal noted that the applicant no longer claimed to fear harm from the loan shark who had lent money to the applicant’s father. The Tribunal considered that the applicant did not face a real risk of harm from the loan shark.
The Tribunal considered that the applicant’s father being held on remand did not impact on the applicant in any way. The Tribunal rejected the applicant’s claim that the police were interested in him because of illegal conch fishing due to his evidence on this issue being vague, limited and implausible.
The Tribunal accepted that the applicant had departed Sri Lanka illegally and would be dealt with upon his return to Sri Lanka under the Immigrants and Emigrants Act. The Tribunal accepted that the applicant might be placed in overcrowded and poor conditions on remand for a short period. However, the Tribunal did not accept that the authorities would be intentionally seeking to harm the applicant by placing him in such conditions. The Tribunal considered that the risk of mistreatment of the applicant as a returnee in a Sri Lankan remand centre was low. The Tribunal also considered that the risks faced by the applicant in remand were risks faced by the population generally and for that reason were not to be taken to constitute significant harm under s.36(2B)(c) of the Migration Act 1958 (“the Act”)
Grounds of review
The grounds of review set out in the application filed on 18 July 2016 are as follows:
1.The decision of the Tribunal:
a.is affected by an error of law; and
b.denied the applicant procedural fairness.
2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision
The second “ground” is clearly not a ground at all. The applicant did not ask this court for an adjournment. In any event, between the filing of the application on 18 July 2016 and the hearing of the matter on 28 August 2017, the applicant had had ample time to obtain a decision from Victoria Legal Aid.
The first ground is not particularised. The applicant was asked a number of times during the hearing on 28 August 2017 to say what was wrong with what the Tribunal did. The applicant said that the Tribunal had not checked the case properly. When asked to expand on that, the applicant said the Tribunal was not fair. When asked to explain in what respect the Tribunal had not been fair, the applicant said that the Tribunal had not gone through everything properly. When asked what the Tribunal had failed to understand or what the Tribunal had missed, the applicant said that the Tribunal had not checked anything properly.
The Minister addressed the SZTAL issues in some detail. The Minister noted that the Tribunal had three alternative bases for considering that the applicant did not face significant harm if he were held on remand for a short period upon his return to Sri Lanka.
The first basis was that the authorities would not be seeking to intentionally harm the applicant. The Tribunal’s approach to this issue was upheld by the High Court in SZTAL. Consequently, there is no reasonable prospect of any argument about intention succeeding.
The second basis relied on by the Tribunal concerned a matter of fact and degree, in that the Tribunal considered that the risk of the applicant suffering mistreatment was low. It does not seem to me that there is a reasonable prospect of success in relation to any argument about a question of fact and degree.
The third basis relied on by the Tribunal was that any risk that the applicant faced on remand was a risk faced by the population generally and consequently was not to be taken to be a real risk of significant harm pursuant to s.36(2B)(c) of the Act. The Minister submitted, and I accept, that this court is bound to accept that the Tribunal’s reasoning on this point was sound by virtue of a decision of the Federal Court in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [10] to [13].
Consequently, there is no reasonable prospect that the applicant could succeed on an argument that the Tribunal erred in its consideration of the issues relating to the applicant being held on remand upon his return to Sri Lanka.
In relation to procedural fairness, the Tribunal conducted a hearing, which the applicant attended with the assistance of his girlfriend. The issues for consideration were well known to the applicant by reason of the delegate’s decision. It seems to me that it is not arguable that the Tribunal denied the applicant procedural fairness.
I have considered the Tribunal’s reasons for decision and decision-making process. I have been unable to discern anything that could arguably amount to a jurisdictional error. Consequently, I do not consider that the applicant has reasonable prospects of success in either the reinstatement application or the extension of time application.
Conclusion
In all the circumstances, I do not consider that it would be appropriate for the application for an extension of time to be reinstated, notwithstanding that there were errors made by the court in the addressing of the notice of listing. That is because there is very little prospect of the applicant succeeding on any basis in relation to the substantive application for review.
Consequently the application in a case filed on 16 August 2017 will be dismissed with costs. I will hear the parties on the quantum of costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 31 October 2017
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