Cej15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 750

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEJ15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 750

File number(s):

PEG 479 of 2015

Judgment of:

JUDGE STREET

Date of judgment:

1 April 2020

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal breached ss. 424AA or 424A of the Migration Act 1958 (Cth) – no jurisdictional error made out.

PRACTICE AND PROCEDURE – application in a case for reinstatement – where proceedings previously dismissed for non-appearance – where no satisfactory explanation provided for applicant’s failure to appear – where no utility in reinstating the proceedings – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), ss 424AA, 424A, 425

Number of paragraphs:

30

Date of hearing:

1 April 2020

Place:

Sydney

Applicant:

In person

Counsel for the First Respondent:

Mr P Macliver

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

PEG 479 of 2015

BETWEEN:

CEJ15

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	1 APRIL 2020

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2.The hearing is to proceed by way of audio link under Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).

3.The application in a case is dismissed.

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

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application in a case filed on 17 March 2020 seeking to have reinstated proceedings that were dismissed for want of appearance on 27 August 2019. 

2. The applicant is seeking a Constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”)  made on 9 October 2015 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa (“Protection visa”). 

3. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. 

4. The applicant departed Sri Lanka in May 2012 and arrived at Christmas Island in June 2012. 

5. The applicant claimed that he and his family were actively involved in the People’s Alliance (“PA”) political party, which attracted negative attention from supporters of a rival party, United National Party (“UNP”). The applicant also claimed to fear harm by certain persons due to being a PA supporter. The applicant also claimed to fear harm from certain persons due to having informed police of drug activities. The applicant also claimed to fear harm from Buddhist Monks, due to being a devout Catholic. The applicant further claimed to fear harm from the Sri Lankan authorities, including because he departed Sri Lanka illegally and sought asylum in Australia.  

6. On 13 August 2013, the Delegate found that the applicant did not meet the criteria for the grant of a Protection visa. The applicant applied for review by the former Refugee Review Tribunal (“RRT”) on 21 August 2013. The applicant was invited to and attended three hearings before the RRT, with a different interpreter in the second and third hearings from the first hearing. The Tribunal affirmed the decision of the Delegate on 9 October 2015. 

7. The Tribunal, in its reasons, identified the background to the application for review and identified the relevant law and summarised the applicant’s claims. 

8. The Tribunal also identified the applicant raising concerns about the interpreter used at the first hearing. The Tribunal found that the applicant was unable to identify any particular interpretation error. The Tribunal noted that at the further hearings, no specific example was identified by the applicant or his representative of any errors or any failure to adequately interpret the applicant’s evidence. The Tribunal did not accept that there were any interpretation errors. The Tribunal was satisfied that the applicant had a genuine and meaningful hearing at the first hearing. 

9. The Tribunal did not accept the applicant’s explanation relating to the Tamil interpreter at his first interview as to the inconsistencies, implausibilities and omissions in his evidence. The Tribunal was satisfied that the applicant had ample opportunity to give evidence and present arguments at the three hearings before the tribunal.

10. The Tribunal did not accept that the applicant was attacked by particular persons or that he and his family were targeted due to their political involvement. The Tribunal did not accept that the applicant faces a real chance of harm from the alleged persons in the reasonably foreseeable future and did not accept that he faces a real risk of significant harm from them.

11. The Tribunal did not accept the applicant faced a real chance of serious harm or a real risk of significant harm from a particular person “N” if he returns to Sri Lanka. The Tribunal did not accept that there is a real chance the applicant will face serious harm from particular individuals in the reasonably foreseeable future.

12. The Tribunal noted that the applicant did not maintain a claim to fear harm by reason of being Catholic. 

13. The Tribunal did not accept that there is a real chance or real risk the applicant faced serious or significant harm from drug dealers or anyone else now or in the reasonably foreseeable future if he continued to volunteer in the civilian protection unit of the police.

14. The Tribunal did not accept that the applicant had a profile which would be of interest to the authorities.

15. The Tribunal did not accept that the applicant would face a real risk or real chance of serious harm or significant harm as a result of being a failed asylum seeker or returning from a western country.

16. The Tribunal accepted that the applicant departed Sri Lanka illegally and found that the chance or risk of the applicant facing serious or significant harm is remote.

17. The Tribunal found that the applicant did not meet the criteria in s 36(2)(a) or s36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) and affirmed the decision under review. 

    BEFORE THE COURT

18. These proceedings were commenced on 20 October 2015. The matter was fixed for hearing on 27 August 2019, by orders made on 3 June 2019,  

19. At the commencement of the hearing today, the Court explained to the applicant the nature of the reinstatement hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

20. In explanation for the failure to appear on 27 August 2019, the applicant referred to his financial position and his difficulty, having moved to Melbourne, as well as being concerned about his family and having limited linguistic skills.

21. It is, however, apparent that the applicant well-appreciated that he was unrepresented and when the hearing date was on. The Court does not accept the applicant’s explanation for the failure to appear as being satisfactory.  The Court turns to the merits of the substantive application.

    THE GROUND

22. The ground in the amended application is as follows: 

    1.The Tribunal breached section 425 and/or 424A of the Migration Act.

    Particulars

    (a)By making findings on the Applicant's evidence in [ 11 O] given during the first hearing which the applicant complained that the interpreter was not conveying his evidence and the Tribunal's questions accurately, the Tribunal failed to apply the statutory procedural fairness obligations imposed by section 424A or section 424AA of the Act, including the provision of clear particulars of information relevant to the Review;

    (b)By making findings on the Applicant's evidence in [11 1] the Tribunal did not accept that any inconsistencies, omissions or implausibilities in the Applicant's evidence resulted from his suspicions of giving correct information because at an earlier, unspecified interview he had a Sinhalese speaking Tamil interpreter, the Tribunal failed to apply the statutory procedural fairness obligations imposed by section 424A or section 424AA of the Act, including the provision of clear particulars of info1mation relevant to the Review,

    (c)The Applicant was therefore denied the opportunity of gaining favourable credit inferences on his evidence which may have occurred had the proper statutory procedures been followed.

23. No evidence has been adduced to support the assertion of any interpretation error. It is apparent that the applicant and his representative were unable to identify any error before the Tribunal.  When invited to do so, the applicant was unable to identify any particular interpretation error before this Court.

24. The Court is not satisfied that there is any arguable case or breach of s 425 of the Act.  The Court is not satisfied that there is any arguable case that the applicant did not have a real and meaningful hearing before the Tribunal.  The Court is not satisfied that there is an arguable case that the applicant was denied a fair hearing before the Tribunal because of the standard of the interpretation. There is no arguably material or significant interpretation error that has been identified. The alleged loss of favourable inferences does not identify any arguable case of relevant error.

25. No information has been identified enlivening any obligation under s 424A of the Act. No arguable case of breach of s 424AA of the Act is apparent on the evidence before the Court. The Court has taken into account, in this regard, both the oral and written submissions of the applicant. The applicant’s submissions, in reality, invite the Court to engage in impermissible merits review. There is no arguable case of a denial of procedural fairness in the conduct of the review on the material before the Court.  No arguable case of jurisdictional error is disclosed by ground 1.

26. The applicant’s oral submissions identify the period of time he had been in Australia without work rights, as well as his concern as to whether he had been properly represented before the Tribunal.

27. Nothing said by the applicant identified any basis upon which it could be said there was an arguable case of relevant error by the Tribunal.  The applicant’s submissions were, in substance, again an invitation to this Court to engage in merits review. The Court has no power to review the merits. Nothing said by the applicant identified any arguable case of relevant error by the Tribunal in its decision or the conduct of the review.

28. The Court is not satisfied on the merits that there would be any utility in reinstating the proceedings, even if the Court had accepted that there was a satisfactory explanation for the failure to appear, which the Court has not.

29. Given that the Court is not satisfied that the applicant has given a satisfactory explanation for his failure to appear, and that there is no arguable case of relevant error by the Tribunal, the Court can see no utility in reinstating the proceedings. 

30. Accordingly, the application in a case filed on 17 March 2020 is dismissed.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 April 2020 and the parties were sent sealed copies of the Court’s orders.

Associate:

Dated:       25 March 2021