CDM17 v Minister for Immigration
[2019] FCCA 3364
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDM17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3364 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection Class XA visa – judicial review application dismissed for non-appearance – application in a case to reinstate the judicial review Application – whether the Applicant has an adequate reason for his non-appearance – whether the Applicant has a reasonably arguable prospect of success – application to reinstate dismissed with costs. |
| Legislation: Federal Circuit Court Rules 2001, rr. 7.01(1), 13.03C(1)(c) Migration Act 1958, s. 425(1) |
| Cases cited: Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZRJY v Minister for Immigration and Citizenship (No. 2) [2012] FMCA 756 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 SZUFS v Minister for Immigration and Border Protection [2015] FCA 991 |
| Applicant: | CDM17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number | MLG 1028 of 2017 |
| Judgment of: | Judge Blake |
| Hearing date: | 9 October 2019 |
| Date of Last Submission: | 9 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | None |
| Advocate for the Respondents: | Mr Creedon |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application in a Case filed on 14 January 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $2,400.
The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1028 of 2017
| CDM17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an Application in a Case filed by the Applicant on 14 January 2019 (‘reinstatement application’) seeking that his judicial review application filed on 19 May 2017 (‘substantive application’) be reinstated. The substantive application seeks judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) made on 27 April 2017, affirming the decision of a delegate of the Minister not to grant the Applicant a protection (Class XA)(Subclass 866) visa (‘visa’).
For the reasons set out below, I have decided to dismiss the reinstatement application.
Background
The Applicant is a Malaysian national who arrived in Australia on 15 February 2016. He applied for the visa on 11 May 2016 on the basis of fearing harm from a money lender that was associated with his vape business.
On 14 September 2016, a delegate of the Minister (‘Delegate’) refused to grant the visa. The Delegate found that the Applicant had provided ‘minimal detail and no evidence to support his claim that he borrowed money from a friend’. The Delegate also found that the Applicant would be able to receive effective protection from the Malaysian authorities.
The Applicant subsequently applied to the Tribunal for review of the Delegate’s decision. The Applicant was unrepresented and attended a hearing on 21 April 2017. He was assisted by an interpreter in the Malay and English languages.
On 27 April 2017, the Tribunal affirmed the decision of the Delegate to not grant the Applicant the visa. In summary, the Tribunal found that the Applicant’s claims were not credible and that the Applicant had provided inconsistent evidence. The Tribunal found that the Applicant should have access to evidence to show he owned and established a vape business and that he borrowed a significant amount of money. Ultimately, the Tribunal found that the Applicant’s claims were not genuine and that he did not meet the criteria for protection.
The Applicant filed the substantive application in this Court on 19 May 2017.
The final hearing of the substantive application was listed before Judge McNab on 14 December 2018. The Applicant did not attend the final hearing. Judge McNab made orders dismissing the substantive application pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (‘Rules’). His Honour also ordered the Applicant to pay the First Respondent’s costs fixed in the sum of $4,500.
The Applicant filed the reinstatement application with this Court on 14 January 2019. The Applicant also filed an affidavit in support of his reinstatement application.
The Reinstatement Application
The principal consideration in this matter is whether it would be in the interests of justice to set aside the orders made by the Court in the absence of a party: SZRJY v Minister for Immigration and Citizenship (No. 2) [2012] FMCA 756.
The following considerations, as set out by Driver J in SZUFS v Minister for Immigration and Border Protection [2015] FCCA 545 at [14], and affirmed by Reeves J in SZUFS v Minister for Immigration and Border Protection [2015] FCA 991 at [18], are relevant to the exercise of the discretion:
a)Whether there was an adequate reason for the non-appearance of the party;
b)Whether there was delay in making the application to set aside the orders made in the party’s absence;
c)Whether there is any prejudice to the Minister in reinstating the matter that could not be adequately compensated for by an order for costs; and
d)Whether an applicant has a reasonably arguable prospect of success on the substantive application.
The Minister concedes that he would not suffer any prejudice arising from the reinstatement of the substantive application that could not be cured by an order for costs. The Minister also concedes that the delay in filing the reinstatement application was not lengthy. Accordingly, I proceed to deal with whether the Applicant has an adequate reason for his non-appearance on 14 December 2018, and whether the Applicant has a reasonably arguable prospect of success on the substantive application.
The explanation for the Applicant’s non-appearance
The Applicant’s affidavit affirmed on 11 January 2019 states that he ‘did not attend the hearing as [he] was instructed by [his] Solicitor that [he] was not required to attend.’
The Applicant did not meaningfully expand upon this explanation during the hearing. He said he got advice from a lawyer that he did not have to attend the hearing. When asked to name the lawyer, he did not answer the question and instead stated that he got to know the person through a friend. He also stated that he became concerned with the lawyer and decided not to continue to use the lawyer’s services. Despite this, it seems he nevertheless accepted the advice of the lawyer and did not attend the hearing.
A review of the file in this matter discloses that at no stage was the Applicant represented in this Court. He has at all times in this Court been self-represented. Further, the Applicant did not provide any evidence of the engagement of any lawyer, or any evidence corroborating his explanation.
In all of the circumstances above, the Applicant has not provided an adequate reason for his non-appearance on 14 December 2018.
Reasonably arguable prospect of success on the substantive application
The reinstatement application sets out six grounds of review. Those grounds are as follows:
‘I am not really focus to remember things happen during hearing session.’
‘I got nervous to answer the question during hearing session’
‘I am not ready to return on my country because it was unsafe situation for me’
‘During the hearing session I was given a chance to talk but it was under pressure and I’m not really focus to answer the question’
‘The interpreter was not explained clearly about the question that was asked by the officer and it was confused’
‘The officer just referred about the point I mentioned about police force in my country from the google internet and not know the real situation I faced and the truth about the point I mentioned’ (errors in original)
I deal firstly with grounds 1, 2 and 4 above. The Applicant addressed grounds 1, 2 and 4 briefly during the hearing. In substance, he reiterated what is contained within the reinstatement application. He said, in effect, that he was nervous and could not recall what he needed to say. The Applicant did not address grounds 3, 5 and 6 during the hearing.
Section 425(1) of the Migration Act 1958 (‘Act’) requires the Tribunal, in the relevant circumstances, to invite an applicant to appear before it to give evidence and present arguments. The threshold that an applicant is required to meet in order to demonstrate that he or she is unable to present arguments is a high one. In Minister for Immigration and Citizenship v SZNCR [2011] FCA 369, Tracey J stated at paragraph [30] that ‘it must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing’.
The Applicant’s feelings of stress or nervousness do not meet the threshold set out by Tracey J. Further, other than his unsupported assertion, the Applicant has produced no evidence that he was unfit or unable to present arguments and answer questions. Absent the production of that evidence, the Applicant cannot establish that he was denied a meaningful opportunity to participate in the hearing before the Tribunal.
There is also no jurisdictional error that is able to be disclosed by the Applicant’s alleged nervousness. There is no indication that the Tribunal’s findings regarding the credibility of the Applicant were unreasonable or lacked a logical or probative basis.
I turn then to deal with ground 3. This amounts to a contention by the Applicant that he is not ready to return to Malaysia.
In seeking to agitate this matter, the Applicant is effectively seeking an impermissible merits review. It is not open for this Court to consider such a ground of review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Ground 5 of the grounds of review is a complaint concerning the interpreter, which may be regarded as a complaint about the alleged denial of procedural fairness.
In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [9], Allsop CJ stated as follows:
[9] The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
The Applicant in this matter has not provided any particulars as to how the standard of interpretation was deficient. No evidence has been placed before the Court as to how the Applicant was misled, or how that affected the decision of the Tribunal. Absent such evidence, the Court is unable to undertake the evaluative exercise contemplated by Allsop CJ. In these circumstances, the Applicant has failed to demonstrate that the standard of interpretation was less than adequate in the manner described by Allsop CJ.
Ground 6 of the grounds of review is an assertion that the Tribunal used information from online sources in respect of its findings regarding the Malaysian police, and that such information did not reflect the real situation on the ground. A review of the Tribunal’s decision discloses that this is plainly incorrect. In reaching its conclusion in respect of the Malaysian police, the Tribunal relied on country information provided to it, which was in turn put to the Applicant for comment at the hearing: see paragraphs [34] to [37] of the Tribunal decision at Court Book page 92.
For all of the above reasons, I am of the view that the Applicant does not have arguable prospects of succeeding in the substantive application.
In view of my findings above, the reinstatement application must be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 21 November 2019
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