CCD17 v Minister for Immigration
[2018] FCCA 766
•5 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCD17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 766 |
| Catchwords: MIGRATION – Application for reinstatement – review of decision of Administrative Appeals Tribunal – whether to exercise discretion to set aside orders – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 |
| Cases cited: BBS15 v Minister for Immigration & Border Protection (2017) 248 FCR 159; [2017] FCAFC 61 |
| First Applicant: | CCD17 |
| Second Applicant: | CCE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1505 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 5 March 2018 |
| Date of Last Submission: | 5 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2018 |
REPRESENTATION
| The applicants appeared in person. |
| Solicitors for the Respondents: | Ms J Strugnell, Minter Ellison |
ORDERS
The application for an order under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1505 of 2017
| CCD17 |
First Applicant
| CCE17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
The first applicant arrived in Australia on 14 March 2014, and the second applicant arrived on 14 April 2014. They both lodged an application for a protection visa on 4 June 2014 on the basis of claims made by the applicant concerning complaints made by her about a corrupt police officer. That application was rejected by a decision of the delegate of the Minister on 19 March 2015. The applicants applied to the Refugee Review Tribunal[1] for review of that decision and the review was completed by the Administrative Appeals Tribunal by a decision made on 26 April 2017.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The Tribunal rejected all of the applicants’ claims because it found that the applicant had fabricated those claims and was not a credible witness. It gave nine comprehensive reasons for that finding.
On 16 May 2016, the applicants lodged an application for judicial review of the Tribunal’s decision, however, when the matter was called before the Court on 7 December 2017, the matter was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) because the applicants did not attend. An order was made for costs.
On 28 December 2017, the applicants lodged an application for reinstatement of their claim. That is the application that is before the Court today. The Court has power under r.16.05(2)(a) of the Rules to vary or set aside a judgment or order after it has been entered if it was made in the absence of a party.
There are a number of matters that are ordinarily considered by the Court in the exercise of that power: first, whether there is a reasonable explanation for the applicants’ absence; secondly, whether there are material arguments available to the applicants that might reasonably lead to the making of an order different to that sought to be set aside; and thirdly, there is no prejudice to the party with the benefit of the orders sought to be set aside that cannot be adequately addressed by the Court.
There appears to be no relevant prejudice that cannot be met by an order for costs in this case, and so the issues really boil down to whether or not there was a reasonable explanation for the failure to appear, and secondly, whether there is a reasonable prospect that the applicants might succeed in the substantive proceedings.
The applicant affirmed an affidavit in which she said that she had really bad knee synovitis and could not walk on 7 December 2017. The applicant said that she had sent by email a medical certificate to the Court on 6 December 2017. That certificate stated:
is receiving medical treatment and for the period of Tuesday, 5 December 2017 to Thursday, 7 December 2017, inclusive, she will be unfit to continue her usual work/school/sport activities.[2]
[2] Emphasis in original.
It is evident on the face of that certificate that the precise nature of the condition said to be suffered by the applicant and the medical treatment said to have been undergoing by her were not specified. Nevertheless, for present purposes, and given that there was no objection to or cross-examination upon the affidavit, I accept that the applicant had trouble with her knee that might have made it difficult for her to attend Court on 7 December 2017. The real question then is whether there are any prospects of success if the matter were to be reinstated.
The grounds in the application filed by the applicants which are written in English are:
1.The application form for my husband and myself was lodged by immigration agent and I was not told what they input
2.I will provide the documents to support my application for the protection visa when hearing.
At the hearing today, the applicant appeared unrepresented. When I asked her what the grounds in the application meant, it appeared, perhaps somewhat ironically, that she did not understand the grounds. It appears in fact that it has been prepared by somebody else for her.
Rather than addressing the grounds of the application, the applicant addressed two things: first, the number of questions asked of her by the delegate at an interview conducted for the purpose of consideration of the protection visa application; and secondly, after it was pointed out to her that the decision in question was not that of the delegate but of the Tribunal, the applicant said first, that her circumstances were genuine, and secondly, that she did not understand why her claims were rejected. Neither of those matters raised today raise any possible argument that could support the grant of relief sought in the application.
However, read broadly, the first ground in the application could be seen to be an assertion that there was some fraud engaged in by the migration agent. The ground has to be read very broadly in order to get to that point because there is no assertion that what was written in the application form was not in fact what the applicant had told the migration agent. Nevertheless, it may be that if the applicant were to establish fraud by the agent, it could be sufficient for her to succeed in the application.
Many claims of fraud have been made in recent years before this Court and the Federal Court. There are at least six Full Court decisions in the last two years (see for example: SZVDC v Minister for Immigration & Border Protection [2018] FCAFC 16, Maharjan v Minister for Immigration & Border Protection [2017] FCAFC 213, SZVBN v Minister for Immigration & Border Protection [2017] FCAFC 90, Minister for Immigration & Border Protection v Hossain (2017) 252 FCR 31; [2017] FCAFC 82, BBS15 v Minister for Immigration & Border Protection (2017) 248 FCR 159; [2017] FCAFC 61 and Gill v Minister for Immigration & Border Protection (2016) 248 FCR 398; [2016] FCAFC 142). The difficulty that the applicant has is that any assertion that she was unaware of what the migration agent put into the application form is entirely inconsistent with the other material before the Court.
Both the reasons for the decision of the delegate and that of the Tribunal reveal that the applicant was questioned closely about the contents of her application and that she not only adhered to the contents of that application, but she was well aware of them: see for example the delegate’s decision at pages 87-88 of the Court Book and [18] and [27] of the Tribunal’s decision.
The problem ultimately for the applicant was that her evidence before the Tribunal, amongst other things, was vague and general, went beyond what was in her original written claims, and some of it was not plausible. Those are to mention just three matters out of the nine particularly considered by the Tribunal on the question of credibility.
While I am cognizant of the fact that this application does not require a close consideration or final argument of any ground to support the substantive application, I am not satisfied that there is a sufficiently arguable case on the material before the Court to warrant the setting aside of the orders made on 7 December 2017. In saying that, I note that on 24 August 2017, the applicant was ordered by the Registrar to file and serve any affidavit in support of her application and that none was filed. For those reasons I would reject the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 4 April 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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