BWS16 v Minister for Immigration

[2018] FCCA 2816

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWS16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2816

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application to reinstate proceedings – adequate explanation for failure to appear – whether the Tribunal failed to consider integers of the applicant’s claims – whether the Tribunal’s findings were not based on findings or inferences of fact – whether the Tribunal complied with the requirements of procedural fairness – whether the Tribunal’s reasons were illogical or irrational – no sufficiently arguable case of jurisdictional error made out to warrant the reinstatement of the proceedings – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C, 16.05

Migration Act 1958 (Cth), s.36

Cases cited:

CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: BWS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 322 of 2016

Judgment of: Judge Street

Hearing date: 28 September 2018

Date of Last Submission: 28 September 2018

Delivered at: Sydney

Delivered on: 28 September 2018

REPRESENTATION

Counsel for the Applicant: Mr S Walker

Solicitors for the Applicant: Su & Co

Solicitors for the Respondents: Ms E Tattersall
Sparke Helmore

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 28 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 322 of 2016

BWS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for reinstatement of proceedings that were dismissed on 17 April 2018 for want of appearance by the applicant under r 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”). The proceedings were commenced on 20 July 2016.

2. In support of the application for reinstatement, the applicant has advanced an explanation for his failure to appear being the fact that he was held in custody at the relevant time. There is no dispute in relation to the substance of the principles to be applied which have been identified by the learned Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] as, whether there has been 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.

3. The discretion that the Court has is a broad one, and the exercise of discretion in relation to the third consideration of an arguable case is one to be determined at an impressionistic level, not a final determination on the merits. In substance, under r 16.05(2)(a) of the Rules in respect of the third criteria, the Court is considering whether there would, in substance, be any utility in reinstating the proceedings. A similar although slightly different formulation of the principles were identified by the learned Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7].

4. In considering whether or not there is any utility in reinstating the proceedings, the Court does not regard there as being any material difference between the third test identified by the learned Ryan J and the test identified by the learned Mortimer J. On one view, the test identified by the learned Mortimer J is a lower threshold of arguability and the Court must take into account the potential finality for the applicant if the Court fails to reinstate the proceedings.

5. The first respondent accepts that the applicant has advanced a reasonable explanation for the non-appearance. Other than costs, the first respondent has not identified any real prejudice if the proceedings are reinstated. The Court takes into account, as identified, that there is a potentially final determination for the applicant if the proceedings are not reinstated.

The proposed grounds

1. The real issue in the present case is whether the four proposed grounds identified in the submissions advanced by Mr Walker of counsel on behalf of the applicant disclose a sufficiently arguable case to give rise to utility in setting aside the order made on 17 April 2018.

2. The proposed grounds advanced by Mr Walker are as follows:

   1. The Tribunal committed a jurisdictional error by failing to deal with three integers of the Applicant's case, namely his claims that:

   a. His family's land was seized by the local authorities in 2009;

   b. As a result, his family had been unable to farm; and

   c. His father has been active in demonstrations against land seizures since that time.

   2. In the alternative, as a result of its treatment of the above claims, the Tribunal committed a jurisdictional error, in that the decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

   3. In the further alternative, and in relation to the same claims, the Tribunal committed a jurisdictional error by breaching the rules of procedural fairness, in that it failed to act rationally, to respond to the case made by the Applicant, and to base the decision on probative evidence.

   4. The Tribunal committed a further jurisdictional error in deciding to place no weight on a statutory declaration by the Applicant (and apparently deciding likewise to place no weight on an article referred to in that statutory declaration), because such decision was irrational, illogical, not based on findings or inferences of fact supported by logical grounds, and was legally unreasonable.

Proposed grounds 1 to 3

1. Mr Walker took the Court carefully through the Tribunal’s reasons in seeking to advance that there was an arguable case disclosed by grounds 1 to 3. Mr Walker contended that there should have been express findings relating to each of the three propositions identified in his ground 1.

2. A fair reading of the Tribunals’ reasons readily identifies that the Tribunal referred to the seizure of the land, the activities of the father and the inability to derive income as a consequence of the seizure of the land. On a fair reading of the Tribunal’s reasons, the applicant’s claim in relation to the seizure of the family land, being unable to farm the same, and his father’s active protests against unfair land confiscations was squarely addressed in paragraph 38, and was referred to in paragraphs 14, 17, 18 and in the first two dot points in paragraph 21. Further, the Tribunal found in paragraph 41 that the claims advanced in respect of the seizure of the family land, being unable to farm the same, and his father’s activities were not credible.

3. The Tribunal did proceed to consider, in that regard, that even if the claimed seizure of the land was true, the applicant had embroidered his claims about his father’s activities in relation to the land seizures. The Tribunal’s reasons reflect making dispositive findings in respect of the subject matter identified in proposed ground 1. Further, the Tribunal addressed the applicant’s activities and those of his father and found they do not give rise to a real chance that the Vietnamese authorities would harm the applicant either because of his actual or his perceived political opinions. The Tribunal found the applicant did not have a kind of profile that places him in the category of people who face a real chance of harm at the hands of the authorities on return.

4. The Tribunal in paragraph 63 referred to considering the totality of the applicant’s circumstances, including the reference to a member of the family known to be opposed to land seizures, and was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention, and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

5. The Tribunal also, in the course of complementary protection, referred to the father’s claimed conflict with the authorities over the seizure of the family’s land and found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that the applicant would suffer significant harm.

6. The Tribunal’s reasons at impressionistic level clearly reflect addressing the three integers advanced by Mr Walker. There is no arguable case of jurisdictional error disclosed by proposed ground 1.

7. In relation to proposed ground 2, a proposition is advanced that there is an arguable case of irrationality. Notwithstanding the skilful argument advanced by Mr Walker, the Tribunal’s reasons identify logical and rational reasons for the adverse findings as summarised above. At an impressionistic level, those reasons cannot be said to lack an evident and intelligible justification. No arguable ground of error is made out by proposed ground 2.

8. Further, in relation to proposed ground 3, it is apparent that the applicant was alive to the issues on a fair reading of the Tribunal’s reasons. There is no arguable case identified at an impressionistic level, nor a failure to accord the applicant procedural fairness in relation to the adverse determination in respect of the applicant’s claims concerning land seizure and his family’s inability to farm, and the alleged active role played by his father in demonstrations. No arguable case of jurisdictional error is disclosed by proposed grounds 1 to 3.

Proposed ground 4

1. In relation to proposed ground 4, the Tribunal’s reasons in paragraph 29 refer to a statutory declaration provided by the applicant, asserting problems obtaining a translation of an article that was annexed to the statutory declaration. The Tribunal’s reasons clearly identify taking into account and engaging with the statutory declaration. On the face of the Tribunal’s reasons, at an impressionistic level, there was a real and meaningful engagement with the statutory declaration and the article advanced by the applicant.

2. Mr Walker skilfully endeavoured to identify an argument of legal unreasonableness in analysis of the Tribunal’s reasons by reference to paragraphs 29 and 44. The Tribunal’s reasons must be read as a whole. It is clear from paragraph 48 that the Tribunal placed no weight on the documents produced by the applicant. It was a matter for the Tribunal to determine what weight to give to country information, and the criticism in relation to concern as to the applicant’s credit in the explanation for difficulties about translation cannot be said to lack an evident and intelligible justification. No arguable case of jurisdictional error, at an impressionistic level, is disclosed by proposed ground 4.

Conclusion

1. The Court is not satisfied that the proposed grounds identify any sufficiently arguable case to warrant the reinstatement of the proceedings. The Court is not satisfied that there would be any utility in setting aside the order made on 17 April 2018. The Court is not satisfied that in the circumstances of the present case it is necessary in the interests of the administration of justice to make an order reinstating the proceedings, notwithstanding the satisfactory explanation for the failure to appear and notwithstanding the limited prejudice to the first respondent, and notwithstanding the likely finality for the applicant as a consequence of the refusal of reinstatement, as there is no sufficiently arguable case disclosed. For the reasons given, at an impressionistic level, the proposed grounds do not identify an arguable case of jurisdictional error and there is no utility in setting aside the orders made.

2. Accordingly, the application in a case is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 30 November 2018