CGU15 v Minister for Immigration

[2016] FCCA 3312

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3312

Catchwords:
MIGRATION – Judicial review – application for reinstatement.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

Cases cited:

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2005] FCA 1066
BRL15 v The Minister for Immigration and Border Protection (No.2) [2016] FCA 1478

Applicant: CGU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2447 of 2015

Judgment of: Judge Harland

Hearing date: 15 December 2016

Date of Last Submission: 15 December 2016

Delivered at: Melbourne

Delivered on: 15 December 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms Ward

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application in a case filed 21 April 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $2,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2447 of 2015

CGU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. I am asked to determine an application in a case filed by the applicant seeking reinstatement of his application for judicial review of the Tribunal’s decision to affirm the delegate’s decision to refuse the applicant’s application for a protection visa.  The first respondent has prepared written submissions and a Court Cook. Ms Ward helpfully went through those submissions this afternoon, outlining the history of the matter and the reasons why the first respondent opposes the application for reinstatement.

3. The applicant has been given an opportunity to make oral submissions as to why I should grant his application.  The applicant says he was afraid to attend.  It is important to outline the history of the matter before the Department and Tribunal before turning to the issue for reinstatement.  The applicant is an Indian citizen who arrived in Australia in January 2008 on a student visa.  He had applied for a further student visa, which was refused.

4. He then applied to the Minister for Ministerial intervention. That was unsuccessful.  After being notified that his application for Ministerial intervention had been unsuccessful, the applicant applied for a protection visa.  The delegate wrote to the applicant on 18 June 2014 asking for the applicant to provide personal identifiers as well as outlining the options that the department may take.  This included the opportunity for an interview and the provision of documents.  The applicant provided the personal identifier information required (this is referred to in the delegate’s decision) but did not take up the opportunity to attend an interview and provide any further documents. This is in spite of the fact that in his application for a protection visa he referred to having documents that he wished to provide.

5. The delegate refers to the applicant’s claims for protection and makes a finding, appearing at page 52 of the Court Book, that the applicant’s claims were extremely vague and limited and that the applicant had not provided any documentary evidence or material to substantiate his claims.  The delegate also pointed to the delay by the applicant in seeking the protection visa. He only applied after his student visas had been refused and his request for Ministerial intervention had been denied. The delegate noted that he had been in Australia for some six years before making that application for a protection visa, and that appears at Court Book 53.

6. The relevance of the delegate’s decision is that it clearly put the applicant on notice of the concerns that the delegate had about his application and his failure to provide any documents and present himself for an interview where he could have provided further information.  The applicant then applied for review to the Tribunal.  The Tribunal sent the applicant an invitation to attend a hearing on 3 September 2015.  It is significant to note that the applicant’s residential address, email and mobile telephone number that are referred to at various points in the Court Book are identical to the residential address, email and telephone number he has provided to this Court on his Court documents.

7. I also note that the invitation letter to appear dated 3 September 2015 invited him to attend a hearing on 29 September 2015.  That provided him with several weeks opportunity to put material in and prepare for that invitation.  It was not an invitation to appear a mere few days later.  The applicant did not respond to that invitation.  At page 65 of the Court Book, there are case notes showing two SMS hearing reminders were sent to the applicant on 22 September and a week later on 28 September.

8. The Court Book records show that the applicant did not attend for the hearing, and that appears at Court Book 66.  The Tribunal’s decision commences on Court book page 71.  The decision was made on 30 September 2015.  The applicant did not attend for that hearing.  The applicant also at no stage contacted the Tribunal before the hearing and did not provide any documents.  The Tribunal decision summarises the applicant’s claims and, at paragraph 20, categorised them in four main areas and then proceeded to deal with each of those claims, and with respect to each referred to the lack of detail and specificity.

9. The Tribunal briefly considered the issue of complementary protection, and the Tribunal affirmed the decision not to grant the protection visa, which is not surprising given the applicant’s lack of engagement and failure to address the issues that had been highlighted in the delegate’s decision. 

10. The applicant’s application for judicial review sets out one ground, which is that the Tribunal did not consider his request about supporting documents in his application. He says he would have sufficient information to support his application. This does not point to any jurisdictional error by the Tribunal. The application was listed for directions before a Registrar of the Federal Circuit Court of Australia on 13 April 2016. The application was dismissed pursuant to r. 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“Federal Circuit Court Rules”) for non-appearance by the applicant, and the Tribunal ordered costs in favour of the first respondent. I also note that the first respondent filed a response on 17 November 2015 indicating that the application for judicial review did not provide any particulars or legal ground for review and did not disclose any jurisdictional error. The relevance of that is that the applicant being on notice that his application was opposed by the respondent.

11. The applicant filed an application in a case seeking reinstatement of his application on 21 April 2016. His affidavit in support of that application says that he had intended to attend for the hearing but that he had been very stressed and mentally and physically unwell and had been forgetting things and that the date had gone out of his mind and that once he had realised that he had missed the date, he contacted the lawyers for the first respondent and then contacted the Court and filed the application.

12. The applicant does not provide any medical evidence in support of his claims in that affidavit. The Court has a discretion pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 to set aside orders that were made in the absence of a party.  It is a matter for the discretion of the judicial officer as to whether or not those orders should be set aside.  Ryan J of the Federal Court of Australia in the decision of MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] addressed the issues that are relevant when considering an application for reinstatement.

13. That paragraph is helpfully set out in the Minister’s written submissions.  In considering exercising its discretion, the Court should consider:

    ·Whether there is any reasonable excuse for the party’s absence from the hearing. In this respect I find the explanation in the applicant’s affidavit unsatisfactory, there being no evidence to support his claims about being unwell. I also observe the multiple failures previously for him to attend any substantive matter before the delegate and the Tribunal.

    ·The existence and any nature of any prejudice to the other party.  The first respondent points that whilst there is not any prejudice, the mere absence of prejudice is not a justification for exercising the decision, and I certainly accept that that is the case. 

    ·Whether the applicant has any reasonably arguable prospect of success in the substantive application.  This has also been considered by North J in the case of MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2005] FCA 1066 at [18].

14. In that paragraph His Honour refers to the decision as to whether or not to reinstate depends not only on whether or not there was a reasonable explanation, but also, if reinstated, there is any reasonable prospect of success.  Another way of phrasing that is a reasonably arguable case.  This is not as high as establishing that an applicant would be successful in the application, but if there is no reasonable chance of success or reasonably arguable case, then there is no purpose in reinstating the case.

15. All that would happen is that there would be further Court time and delay in the matter being completed.  In my view, this is a very clear case where there is no utility in reinstating the application.  With respect to the issue of reinstatement, I also refer to a very recent decision of Pagone J in BRL15 v The Minister for Immigration and Border Protection (No.2) [2016] FCA 1478. That was in the context of an applicant failing to attend an appeal hearing, and what Pagone J referred to in that case was that the reinstatement of an application following dismissal for a non-appearance should not occur as a matter of course.

16. It is not simply a matter of ticking the boxes.  There needs to be some useful purpose in the administration of justice for reinstating the application.  I am satisfied that the Tribunal did not make any jurisdictional error in determining to proceed to a decision in the absence of the applicant in circumstances where he was given the opportunity to attend the hearing within a reasonable timeframe and was sent two text messages as a reminder of the hearing, sent a week apart, and the fact that the applicant showed absolutely no engagement with the process both before the department and before the Tribunal.

17. In those circumstances, it cannot be said that the Tribunal made a decision that was legally unreasonable in determining the matter in his absence, and it was inevitable given the paucity of evidence in support of the applicant’s claim and the lack of particularity of that claim that the Tribunal reached the conclusion that it did.

18. In my view, the applicant’s substantive application has no prospects of success and there would be no utility in reinstating the application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  19 December 2016