CAL15 v Minister for Immigration

[2016] FCCA 1537

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1537

Catchwords:
MIGRATION – application in a case to reinstate application for judicial review – Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 – whether adequate explanation for failure to attend directions hearing by a Registrar – whether the Applicant’s substantive case is arguable – explanation for non-attendance inadequate and substantive application not arguable – application in a case dismissed.

Legislation:

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

Applicant: CAL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2212 of 2015

Judgment of: Judge Jones

Hearing date: 18 May 2016

Date of Last Submission: 18 May 2016

Delivered at: Melbourne

Delivered on: 18 May 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Ms Bosnjak

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The Application in a Case filed by the Applicant on 8 March 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1,984. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2212 of 2015

CAL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. This decision is in relation to an application in a case filed by the Applicant on 8 March 2016. The application in a case specifies, under the heading ‘Orders sought’, as follows:

   “That this matter be relisted for hearing.”

2. The First Respondent submits that this application should be treated as an application pursuant to the Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (“the Rules”), that being as an application by the Applicant to set aside the Orders of Registrar Ryan made in the absence of a party. I agree that this is the appropriate way of treating the Applicant’s application in a case.

Background

1. The Applicant filed an application for judicial review on 5 October 2015, in relation to a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant the Applicant a Protection (Class XA) visa (“the visa”).

2. The review application was listed for a directions hearing before Registrar Ryan on 2 March 2016, and the date of the directions hearing was engrossed on the Notice of Filing and Hearing, generated by the Court’s electronic filing system (CB 198).

3. The Applicant failed to appear at the hearing and Registrar Ryan made the following order: 

   “1. Pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

   2. The applicant pay the first respondent’s costs, fixed in the sum of $1,367.” 

4. The Minister submits that the application in a case made by the Applicant should be dismissed with costs. The Minister has provided a written submission in relation to the application in a case, which I confirmed with the Applicant, he received and read.

5. The Applicant is self-represented. Consequently, I explained to him that the Court’s considerations of matters relating to r.16.05 of the Rules was a broad discretion, but that generally, the Court will have regard to, firstly, whether there was an adequate reason for the Applicant’s non-appearance, and secondly, whether the Applicant has an arguable case in relation to his substantive application. I further explained that this was because, if he did not have an arguable case, it would not be in the interests in the administration of justice to proceed to a final hearing. It would simply be, in the circumstances where this is a very busy Court, a futile exercise. I also stated that the Court may consider whether any prejudice will be suffered by the First Respondent by the reinstatement of this case.

6. I explained to the Applicant that, in circumstances of judicial review, the Court does not consider the merits of his visa application. Instead, the Court’s focus is only on the Tribunal decision and whether that decision itself reveals what lawyers call jurisdictional error, but may be better understood by self-represented Applicants as a serious legal mistake.

7. Turning firstly to the question of the Applicant’s explanation for his non-attendance at the directions hearing. In his affidavit, filed on 8 March 2016 with his application in a case, the Applicant stated:

   “Because of reasons beyond my control, I was unable to attend my hearing.”

8. I asked the Applicant what he meant by that. He submitted that he had confused the date and that he had thought that the date of the hearing was 3 March 2016, but when he checked his email, he realised it was on 2 March 2016. I agree with the Minister that this is not an adequate reason for the Applicant’s non-attendance. It is the Applicant’s application for judicial review. It is a serious application. He wants to have the Tribunal’s decision quashed, and it is a decision in relation to a Protection Visa. The Applicant was under an obligation at all times to ensure that he was properly informed of the date of every Court date, including a directions hearing.

9. The Minister concedes that there is no prejudice. The Minister would not suffer because it would be adequately dealt with by costs, and I agree that that is a correct approach. 

10. The real question in this decision today is whether the Applicant’s grounds for judicial review disclose an arguable case, that is, whether his substantive application has merit. In order to deal with that I should first provide some background to the review application.

11. The Applicant applied for Protection (Class XA) visa on 6 February 2014. This was declared invalid, so he then applied for the relevant visa a second time on 29 April 2014. The Applicant was represented by JK Legal, who he authorised to represent him (CB 102 to 104).

12. Essentially, the Applicant’s claims were that he feared harm from a group of criminals that he had fought with, and that he and his cousin had lodged a complaint against this group. The Applicant was invited by a delegate, by way of a letter dated 13 May 2014, to contact the Department of Immigration and Border Protection (“the Department”) if he wished to attend an interview to discuss his visa (CB 108-113). Neither the Applicant nor his representative contacted the Department or requested that they attend an interview (CB 128). On 1 October 2014, the delegate refused to grant the visa.

13. On 6 November 2014, the Applicant applied to the Tribunal for review of the delegate’s decision. The Applicant attached a copy of the delegate’s decision with the application, as he was required to do, and the Applicant indicated in his application that JK Legal continued to represent him, and provided email address of JK Legal for correspondence (CB 144).

14. On 11 August 2015, the Tribunal, sent correspondence by email to the Applicant’s representatives, inviting the Applicant to give evidence and present arguments at a hearing scheduled for 26 August 2015 at 9.30am (CB 173-174). The letter, amongst other things, informed the Applicant that if he did not attend the hearing, the Tribunal may make a decision without taking further action to allow or enable him to appear before it. The Tribunal also attached a ‘Response to a Hearing Invitation’ form (CB 179-181) to be completed and, in that form, under the heading ‘Part 1 – Who will take part in the hearing?’ – it stated:

    “Please note that if you select ‘No’ in response to the following question, we may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before us.”

15. On 25 August 2015, the Applicant’s representative sent, by email, to the Tribunal a completed ‘Response to Hearing Invitation’ form (CB 182-185). Relevantly, under the heading ‘Part 1 – Who will take part in the hearing?’, in response to the question, ‘Will you take part in the hearing scheduled for 26 August 2015?’, the ‘No’ box was ticked in relation to both the Applicant and the Applicant’s representative (CB 183).

Tribunal decision

1. The Tribunal proceeded, as it was perfectly entitled to do, to make a decision, and on 1 September 2015, the Tribunal affirmed the delegate’s decision not to grant the visa. The Tribunal noted that the Applicant’s representative had indicated that neither the Applicant nor the representative would be attending the hearing that the Applicant had been invited to attend (CB 191 at [6]). The Tribunal also noted that there was a lack of detail in relation to the Applicant’s claims that he was involved in a fight with a gang, or the lodging of a complaint, and the Tribunal found against the Applicant’s claims due to this lack of detail (CB 193, at [21] to [22]).

2. The Tribunal also did not accept that the Applicant made a complaint to authorities and, therefore, it did not accept that the Applicant would be unable to avail himself of protection from authorities in India (CB 193 at [23]). The Tribunal also had regard to the Applicant’s delay in lodging his visa application, and concluded that this supported a conclusion that the Applicant did not fear persecution should he return to India (CB 194 at [24]).

3. The Tribunal then proceeded to find that there was not a real chance that the Applicant would be targeted for serious harm, attacked or killed by Ranjit Singh or his associates if he returned to India, now or in the reasonably foreseeable future (CB 194 at [25]).

4. It further did not accept that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to India, there was real risk that he would suffer significant harm, now or in the reasonably foreseeable future (CB 194 at [28]).

5. In his application for judicial review, the Applicant specified the following grounds of review:

   “1. MRT took account of irrelevant considerations

   2. MRT erred at law

   3. MRT failed to take account of relevant consideration.”

6. I asked the Applicant to give the Court an explanation about what he meant by each of these grounds, as the grounds specified did not inform the Court about his reasons for asserting that the Tribunal decision suffered from jurisdictional error. I asked him, firstly, to explain to the Court what irrelevant considerations he said the Tribunal took into account. His response was that he was not able to give an explanation. I then asked him to explain to the Court why he said that the Tribunal erred at law. The Applicant’s response was that he did not know what that meant. I then asked him to explain to the Court what relevant considerations he said the Tribunal failed to take account of. The Applicant responded that he could not say.

7. In those circumstances, I am satisfied that the Applicant does not have an arguable case. The decision record of the Tribunal discloses a well-reasoned consideration of all the claims before it, and I note here, of course, that the evidence before the Tribunal was very limited because the Applicant and his representative had failed to contact the delegate to attend an interview, and had also decided not to attend the Tribunal hearing, to enlarge upon the written material the Applicant had provided.

Conclusion

1. The Tribunal applied the statutory criteria and I am satisfied the Tribunal performed its statutory task. In these circumstances, I am satisfied that the Applicant does not have an arguable case. There is no merit in his substantive case.

2. Consequently, I would make an Order that the Applicant’s application in a case, filed on 8 March 2016, be dismissed, and that the Applicant pay the costs incurred by the First Respondent, which the Minister has specified in his written submissions as being $1,984.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 22 June 2016