CIC19 v Minister for Immigration

[2019] FCCA 3090

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIC19 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3090

Catchwords:
MIGRATION – Application to reinstate – where Registrar dismissed the application at callover for non-attendance of applicant – no arguable prospects of success – reinstatement refused.

Legislation:

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

Migration Act 1958 (Cth), ss.5H, 5J(1)(a), 36(2)(a), 36(2)(aa), 424AA, 425, 438.

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
CVM18 v Minister for Immigration and Border Protection [2019] FCCA 2456
Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Sikari v Minister for Immigration & Anor (No.2) [2019] FCCA 1341

First Applicant: CIC19

Second Applicant: CIE19

Third Applicant: CIF19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1452 of 2019

Judgment of: Judge Baird

Hearing date: 30 September 2019

Date of Last Submission: 30 September 2019

Delivered at: Sydney

Delivered on: 30 September 2019

REPRESENTATION

The First Applicant appeared in person and on behalf of the Second Applicant

The Third Applicant (a minor) appeared by their litigation guardian, the First Applicant

Solicitors for the Respondents: Mr D Baddeley, Mills Oakley

THE COURT:

1. DISMISSES the application in a case dated 22 July 2019.

2. ORDERS the First and Second Applicants pay the First Respondent’s costs fixed in the sum of $3,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1452 of 2019

CIC19

First Applicant

CIE19

Second Applicant

CIF19

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)

Introduction

1. This is an Application in a case filed 22 July 2019 for reinstatement of the three Applicants’ application for judicial review which was filed on 13 June 2019. The Applicants’ judicial review application was dismissed by a Registrar of the Court on 4 July 2019, on the First Court Date, under rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), due to the non-appearance of any of the Applicants.

2. The First Respondent, the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs, opposes the Application for reinstatement, and further argues that there is no jurisdictional error made by the Second Respondent, the Administrative Appeals Tribunal, in its decision dated 22 May 2019.  The Minister submits that the First Applicant’s explanation for his non-appearance before the Registrar in this Court is unsatisfactory, and inadequate before me today, and also submits that the explanation shifted during the course of the First Applicant’s evidence before me.

Factual Background and First Applicant’s claims

1. The First Applicant is an Indian national born in Haryana, India, in 1988, and he is a Sikh.  His wife, the Second Applicant, was born in Haryana in March 1983 and their son, the Third Applicant, was born in March 2013.  All three Applicants are nationals of India.  When the matter was before me on 23 September 2019 for directions, with his consent, I appointed the First Applicant the litigation guardian of his child, the Third Applicant.

2. The Applicants arrived in Australia by plane under a visitor visa‑tourist stream on 31 December 2014.  The First Applicant applied for a protection (class XA) subclass 866 Visa on 10 February 2015.  The First Applicant made protection claims, and the Second and Third Applicants applied for protection visas as members of the First Applicant’s family unit, and did not make protection claims of their own. 

3. The First Applicant claimed to fear harm from a Mr Buta Singh who he claimed was his father’s political enemy, and a well-known politician, and leader of the Indian National Lok Dal (INLD) political party. 

4. The First Applicant claimed his father was also a leader of the INLD but after his father became aware that Mr Singh was involved in corrupt practices, his father left the INLD, and joined the Congress Party.  Mr Singh regarded the First Applicant’s father as his political enemy because his father was popular with local farmers.  Mr Singh threatened his father and his family, and so his father advised the First Applicant to go to another country.  The First Applicant travelled to the United Kingdom from 3 December 2009 until 2 March 2010, he then returned to India.

5. The First Applicant’s father was killed in a car accident on 25 November 2009, just before he left to go to the UK.  The First Applicant suspected Mr Singh had something to do with that accident, and his family reported their submissions to the police but Mr Singh avoided criminal prosecution because of “political connections and influence”.  It appears the First Applicant continued to “pursue justice” for his father’s death, and Mr Singh threatened and intimidated the First Applicant in an attempt to coerce him to withdraw the charges, but the First Applicant did not.

6. The First Applicant’s mother died of a heart attack due to stress in 2010.  The First and Second Applicants travelled to the United Kingdom on 22 December 2012, and returned to India on 29 April 2013.  After returning to India, the First Applicant resumed working as a farmer, and in November 2014 he was involved in an accident that reminded him of his father’s accident so he left India, he says, to save his life.

7. The First Applicant claims that he would be killed if he returned to India.  He could not get effective state protection from the police because of Mr Singh’s political connections, and he could not relocate within India as Mr Singh had political connections throughout the country. 

Delegate’s decision

1. The First Applicant attended a protection visa interview at the offices of the Department of Immigration and Border Protection (as it was then named, now known as the Department of Immigration, Citizenship, Migration Services and Multicultural Affairs) on 11 March 2016.  Before a Delegate of the Minister, the Applicants had the assistance of their authorised representative.  The interview before the Delegate was conducted with the assistance of an interpreter in the Punjabi and English languages.  By decision dated 18 March 2016, the Delegate refused to grant the Applicants protection visas.

2. The Delegate found that the First Applicant was not a truthful witness, and his claims were not credible.  The Delegate found that the First Applicant’s evidence at the interview was vague and lacked plausible detail, and also found that the First Applicant’s repeated return travel to India after travelling overseas (to the United Kingdom twice and also briefly to Thailand for three days) undermined his claim to fear of harm. 

3. The Delegate found that the significant inconsistent and conflicting information in his visitor visa application, and his Visa application raised serious concerns about the First Applicant’s credibility and the credibility of his claims, as did fraudulent documents provided with his visitor visa application.  Further, the Delegate considered, and rejected, the First Applicant’s claims, at the interview, that he may have some mental health problems, which it described as “vague and unsubstantiated”.

The Tribunal proceeding and decision

1. On 21 April 2016, the Applicants applied to the Tribunal for review of the Delegate’s decision.  Before the Tribunal, as before the Delegate, the Applicants were assisted by a registered migration agent (appointed as authorised representative and recipient of documents).  On 2 April 2019, nearly three years after the application to the Tribunal, the Tribunal invited the Applicants to attend a hearing scheduled for 24 April 2019.  All three Applicants attended the hearing to give evidence, and present arguments, but only the First Applicant gave evidence.  The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The Applicants’ representative also attended the hearing. 

2. At the Tribunal hearing, the First Applicant presented his passport confirming that he is a citizen of the Republic of India.  The Tribunal affirmed the Delegate’s decision not to grant the Applicants protection Visas. 

3. I note the Tribunal’s decision extended over 16 pages and some 85 paragraphs.  It sets out the evidence given by the First Applicant and the Tribunal’s consideration and conclusions.  Mr Baddeley, solicitor appearing on behalf of the Minister, in his written submissions reviews the Tribunal’s decision in some detail.  I have read Mr Baddeley’s submissions, cross-referencing to the decision of the Tribunal, and I am satisfied that Mr Baddeley’s submissions fairly set out the evidence, the Tribunal’s consideration, and its findings.  The following description is made with the benefit of those submissions. 

4. The Tribunal employed the procedure under s.424AA of the Act, and put oral particulars of information to the First Applicant for comment (decision at [49]-[52]). The oral particulars related to:

   (a)information in the First Applicant's visitor visa application that indicated he and the Second Applicant had a daughter who lived in India, and his inconsistent oral evidence about whether he had a daughter or a niece (at [50]);

   (b)the Department's enquiries about the certificate of business registration (at [51]); and

   (c)the First Applicant's inconsistent oral evidence about when he was first threatened by Mr Singh (at [52]).

5. The First Applicant elected to respond to the information in writing.  On 8 May 2019, he provided a post-hearing response in relation to items (a) and (b) above.  In relation to item (a), the First Applicant claimed that he, and the Second Applicant could not have children so they began caring for the First Applicant's brother‑in‑law's daughter.  They mentioned their daughter when they applied for a visa to the UK, and their visitor visa to Australia.  However, when they arrived in Australia, they did not mention her because she was back living with the First Applicant's brother‑in‑law.  In relation to item (b) above, the First Applicant claimed that one of his employees arranged the certificate, and he believed that the certificate was genuine.  The Tribunal expressly considered the First Applicant's response in its decision (at [56]-[57]), the issue about his daughter (at [69]), and the certificate (at [70]).

6. The Tribunal affirmed the Delegate's decision on the basis of adverse credibility findings supported by identified inconsistencies in the First Applicant's claims, and evidence.  In summary, the Tribunal found that the First Applicant:

   (a)gave inconsistent evidence in his visitor visa application, and his Visa application about whether he had a daughter in India (at [30], [33], [50], [56]; and [69]);

   (b)gave the Department a non-genuine document (namely, the certificate) with his visitor visa application (at [34], [51], [57], and [70]);

   (c)gave inconsistent evidence about when he was allegedly first threatened by Mr Singh (at [42], [52], and [71]);

   (d)gave evidence about his belief that Mr Singh had orchestrated his father's death that was "vague and speculative", and was inconsistent with the date that his father was allegedly killed (at [37] and [72]);

   (e)was inconsistent about whether his mother or father told him to travel to the UK, why he travelled to the UK, and his failure to seek protection in the UK in the period December 2009 to March 2010, which cast serious doubt on his claims for protection (at [46]‑[47], and [73]);

   (f)would have sought protection in the UK when he visited there between December 2012 and April 2013 if his claims were true and he genuinely feared harm in India (at [74]); and

   (g)had not provided any evidence to support his claim that he had returned to India to seek justice for his father, and the Tribunal found this was a "spurious claim" made to justify his return to India (at [74]-[75]).

7. The Tribunal summarised the First Applicant's evidence to the Department (at [5]‑[24]), the First Applicant's oral evidence at the Tribunal hearing (at [25]‑[54]), and the First Applicant's post‑hearing response to oral particulars dated 8 May 2019 (at [56]‑[58]).

8. The Tribunal accepted the First Applicant's identity claims (at [65]).  It also found that he was able to respond to the Tribunal's questions at the hearing, and, in the absence of any documents to support his claimed mental health problems, it was not satisfied that he was so affected by depression, nervousness, and mental confusion that he would not be able to recall the details of his own claims.  It was also satisfied that he had a fair opportunity to provide his evidence in relation to the issues arising "in his case" (at [68]).

9. The Tribunal expressly raised concerns about the First Applicant's credibility at the hearing, and afforded him an opportunity to comment on or respond to adverse information obtained from the Department file in relation to his visitor visa application, which indicated that the First Applicant had a daughter.  The Tribunal considered the First Applicant's evidence to the Delegate (and the Tribunal) denying that he had a daughter, and his later explanation to the Tribunal that he and the Second Applicant adopted his brother-in-law's daughter, and they returned the daughter to the brother in‑law after the birth of their son.  The Tribunal was concerned that the First Applicant was not being frank with the Delegate or the Tribunal, and found that his further explanation that he did not know what information was included in his visitor visa application because someone else prepared it undermined his credibility (at [69]).

10. The Tribunal noted that the First Applicant had provided the Department with a “non-genuine document” (namely, the certificate).  It did not accept the First Applicant’s explanation that he had relied on an employee to arrange the certificate because he did not know much about business.  It also found that by “that stage” (when the First Applicant sought to arrange the certificate) the First Applicant had worked in his father's business for four years.  It found that he had claimed to have given the certificate to his friend when the visitor visa was lodged, and that he had sold the business seven months before coming to Australia.  For these reasons, the Tribunal was not satisfied that the First Applicant was not aware that he had provided a false document to the Department, and found that the provision of the false document to the Department undermined the First Applicant’s credibility (at [70]).

11. The Tribunal found that the First Applicant had given inconsistent evidence about when he was first threatened by Mr Singh, and found that this also undermined his credibility (at [71]).

12. The Tribunal found the First Applicant’s evidence about his belief that Mr Singh orchestrated his father’s death was “vague and speculative”.  It found that the First Applicant gave inconsistent evidence about the date that his father was killed (at [37]), and there was nothing before it “other than his oral claims” to support the First Applicant’s claim that his father was killed in a road accident that was possibly orchestrated by Mr Singh, and that the police did not investigate it (at [72]).  Whilst the Tribunal acknowledged the First Applicant’s explanation about why he did not have any supporting evidence, it found that if he had genuinely left India for the reasons he claimed, and intended to seek asylum in Australia, he would have brought supporting documentation with him.  The Tribunal found that the identified inconsistencies in the First Applicant's evidence, and the lack of supporting evidence further undermined his credibility (at [72]).

13. The Tribunal found that the First Applicant was inconsistent about the reason why he travelled to the UK.  It found at the hearing that he had claimed his mother had suggested he should go, but in his Visa application claimed it was his father who told him he should go overseas.  The Tribunal found this inconsistency cast further doubt on the First Applicant’s claims that either of his parents thought he should go overseas due to the claimed difficulties with Mr Singh.  Further, the Tribunal was not persuaded that the First Applicant would leave his mother soon after his father’s death if his family genuinely believed that his father’s death was orchestrated by Mr Singh.  In addition, the Tribunal found that the First Applicant’s failure to seek protection in the UK in the period December 2009 to March 2010 cast serious doubt on his claims for protection (at [73]).  The Tribunal did not accept the First Applicant’s explanation that he did not seek protection in the UK when he travelled there again between 22 December 2012 and 29 April 2013 because he thought the situation in India would “normalise”.  It found this explanation was “highly unpersuasive” (at [74]).

14. The Tribunal found there was no evidence to support the First Applicant’s claim that he returned to India to seek justice for his father and found this was a “spurious claim” made to justify his voluntary return to India.  Further, it found that the Applicant did not seek protection in the UK because he did not fear harm in India, and this cast doubt on all of the First Applicant’s claims for protection (at [74]‑[75]).

15. The Tribunal was unpersuaded by the First Applicant’s evidence that he went into hiding for 15 to 20 days but was found by Mr Singh or Mr Singh’s gang because it had not accepted that the First Applicant was being threatened by Mr Singh or his “followers/gang” (at [76]).

16. The Tribunal had serious doubts about the reliability of the First Applicant’s evidence, and was not satisfied that he was a credible witness, and rejected his key claims for protection on the basis that they had been fabricated (at [78]‑[79]).

17. The Tribunal had regard to its anterior factual findings in relation to its assessment of the refugee criterion (at [81]), and on the evidence before it, also found that the First Applicant would not face a real risk of significant harm if he returned to India (at [82]).

18. The Tribunal was not satisfied that the First Applicant met the refugee criterion (at [79]) or complementary protection criterion (at [82]).  As the First Applicant did not meet the requirements for the grant of the Visa, the Tribunal found the Second, and Third Applicants also did not meet the requirements (at [83]).

Application for reinstatement in this Court

1. Before me for hearing today is the Application for reinstatement. The Applicants’ application for judicial review was listed for a First Court Date on 4 July 2019. On that occasion, there was no appearance by or on behalf of any of the Applicants (and specifically the First Applicant), and a Registrar of the Court made orders dismissing with costs the Applicants’ judicial review application under r.13.03C(1)(c) of the Rules.

2. The evidence before me is that the First Applicant made the application for judicial review to this Court with the assistance of a friend who reads English and assisted in the preparation of the documents.  The First Applicant filed the application himself, and received the sealed application.  The sealed application, on its face, expressly states that the application is listed for a “First Court Date on 4 July 2019 at 9.30 am before a Registrar at Law Courts Building, Queens Square, Sydney.”

1. On 22 July 2019, the First Applicant filed this Application in a case to set aside the orders made by the Registrar.  The First Applicant supported this Application with an affidavit dated 22 July 2019.  Attached to his affidavit is an email to the First Applicant from the Minister’s solicitors dated 18 July 2019, which records that the letter dated 9 July 2019, sent by the Minister’s solicitors in compliance with order 2 of the Registrar’s orders of 4 July 2019 was returned to their office on 17 July 2019 marked with the address crossed out.  That email also records that if the First Applicant had changed his address, he should complete the attached notice of address for service form, and file it with the Court, and send a copy of the filed notice to the solicitors.  The letter referred to in that email is also attached to the First Applicant’s affidavit.  That letter sets out the procedure for filing an application in a case. 

2. In his affidavit in support, the First Applicant attests as follows, first setting out his, and his wife’s brief history, and then stating (without alteration):

   8.We applied to the Federal Circuit Court on 13 June 2019.

   9.The Registrar of the Court and not the Judge of the FCC dismissed our application for non-attendance on 04 July 2019.

   10.We did not receive any email or mail confirming the date and time of the Direction hearing.

   11.I am also attaching with this email correspondence received till to date from Mills Oakley.

   12.I am a self-represented application and the Courts should have provided adequate procedural fairness before dismissing my application.

   13.The Court has failed to assess the substantive issues of the case and dismiss at the direction hearing.

   14.I respectfully submit that I have genuine and justifiable reasons to seek the Court's intervention to re-open my case.

3. In the Application, the First Applicant set out the orders sought as follows (without alteration):

   1.The orders made on 04 July 2019 in this matter be set aside under Rule 13.03C (1)(c)

   2.The Applicant file and serve any amended application and any affidavit annexing evidence on which they seek to rely by a date to be fixed.

   3.The First Respondent file and serve any affidavit annexing evidence in reply by a date to be fixed.

   4.The matter be set down for final hearing on a date to be fixed.

   5.The Applicant file and serve a written outline of submissions and a list of authorities 14 days before the hearing date.

   6.The First Respondent file and serve a written outline of submissions and a list of authorities 7 days before the hearing date.

4. When the matter was before me on 23 September 2019, the First Applicant indicated that he wished to get legal advice, and gave a rather confused explanation for why he did not appear at the First Court Date.  That explanation seemed to be that he could not read English.  His explanation for non‑appearance has otherwise been subsumed by his explanation today, which I address later in these reasons. 

5. I made orders for a short timetable providing for the Minister to file and serve a bundle of relevant documents by 27 September 2019, and for the First Applicant to file and serve any additional evidence to be relied on, and also to file and serve written submissions, and a list of authorities by that same date.  No evidence, submissions, or list of authorities, was received by the Court.  The Minister was ordered to file and serve additional evidence and written submissions at the same time as the Applicants, and the Minister did so. 

Grounds of review –substantive application

1. The grounds of review in the substantive application for judicial review contain 2 grounds as follows (without alteration):

   Ground 1

   The Tribunal failed to assess applicant's claims and failed to consider an integer of the applicants' claim or failed to give genuine realistic consideration of the applicants claim for a protection visa.

   Particulars

   A.The applicant in his claim articulated in form 866 noted that he would face harm due to his intention of seeking justice for the death of his father.

   B.The Tribunal failed to assess applicant's perceived political opinion supporting the Congress party due to his father's political opinion.

   Ground 2

   The Tribunal invited the applicant's wife for a hearing but failed to take evidence from her.

Legal Principles

1. The Court’s power to reinstate where an order has been made in the absence of a party is provided in r.16.05(2)(a) of the Rules. I summarised the relevant principles for reinstatement in the recent decision of CVM18 v Minister for Immigration and Border Protection (2019) FCC 2456 at [29] to [30], adopting the summary recently set out by Emmett J in this Court in Sikari v Minister for Immigration and Another (No. 2) (2019) FCCA 1341 at [9].

2. In short, the Court has a broad discretion which in general requires consideration of three factors, and the determination whether on balance they tend for or against reinstatement.  These factors are:

   (a)whether there is a reasonable excuse for the party’s absence at the hearing when the proceeding was struck out;

   (b)whether there is any prejudice, and the existence and nature of any prejudice, to the other party from the reinstatement.  

   If reinstatement were granted, the extent to which this may be addressed by adjournment, order for costs or other relief. This factor also includes consideration of the impact of reinstatement on the efficient allocation and use of scarce Court resources, noting that the mere absence of prejudice is not sufficient to grant relief; and

   (c)whether the applicant, in the present case, the First Applicant, has a reasonably arguable prospect of success on the substantive application.

3. In relation to the approach to be taken in considering the prospects of success of the substantive application in a reinstatement application, I note the observations of Mortimer J in CAL15 v Minister for Immigration and Border Protection (2016) FCA 1344 at [5] and [6]. In sum, whilst the Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application at final hearing, the threshold is whether the ground of review is arguable: “That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument with the parties having a fair opportunity to prepare for such argument.  Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed.” (CAL15 at [6]).

4. Where, however, a substantive application lacks prospects of success, reinstatement would be futile, and an application for reinstatement ought to be refused.

Proceeding in this Court

1. Before me today the First Applicant appeared unrepresented, but with the benefit of an interpreter in Punjabi and English.  He was supported in Court by another gentleman who sat in the well of the Court.  As I have noted above, the Applicants were represented before the Tribunal, and earlier before the Delegate. 

2. At the outset of this hearing, I explained to the First Applicant that the role of this Court is very different from that of the Tribunal, and it is not for the Court to consider the Applicants’ claims and to reach different factual findings or conclusions.  I explained to the First Applicant that the only issue before this Court in the substantive application is whether or not the decision of the Tribunal was made according to law.  I further explained to the First Applicant that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes a mistake, going to the Tribunal’s jurisdiction.  I said this Court is not a forum in which a party may simply re-argue his case in the hope of convincing the judge to take a different view of the evidence.  This Court has no jurisdiction to consider the factual merits whether or not the Applicants’ claims for refugee status are made out. 

3. I also explained to the First Applicant the costs consequences that would flow to him if a costs order was made against him.  The First Applicant indicated that he wished to proceed with his application for reinstatement, and, if successful, that he wished to proceed with his substantive application.  In relation to his substantive application, I urged the First Applicant to read the application again, and the grounds were translated to him.  The First Applicant said he wished to proceed and, to rely on both grounds.

4. At the commencement of the hearing before me today, the First Applicant handed up a medical certificate concerning his wife, which I accepted into evidence.  From the Bar table, the First Applicant said that his wife had gone to hospital on Friday, 27 September 2019 where she had spent the day, and then been discharged, and that she was back in hospital this morning.  He said that she had gallstones.  He did not provide any substantiating or supporting evidence.

5. Upon being pressed, the First Applicant advised that his wife had not previously been in hospital this year before Friday, 27 September 2019, but that she had been in hospital last year, he thought, in November, and that she was not diagnosed with any particular disease.  The medical certificate, however, stated only that the Second Applicant:

   …was seen here at the Emergency Department at Griffith Base Hospital having presented at 30/09/2019 10:59 and treated for: Medical Condition.

   The doctor considered her to be:

   …unable to attend normal duties: From 30/09/2019, Until 30/09/2019 (inclusive). 

6. That is, the medical certificate is limited to today only.  There is no evidence before me of any condition that the Second Applicant may have.  The First Applicant confirmed that he appeared for the Second Applicant, and, as I have said, he is the litigation guardian for his child.  In relation to his child, he confirmed that his son goes to school and that holidays only started today.  In answer to my enquiry, the First Applicant informed me that his child was with the child’s mother in the hospital today.

7. The First Applicant said that he did not have any time to prepare any material before the Court, however, his explanation does not answer his failure to comply with the Court’s orders which expressly required the First Applicant to prepare his material by Friday, 27 September 2019, that is, before - on his account - his wife first went to the hospital.  I did not find his explanation as to why he did not have time to prepare any material to place before the Court today convincing.

8. Mr Baddeley drew attention to the letters attached to the First Applicant’s affidavit in support of the Application, which I have already mentioned.  He also tendered a letter from the Minister’s solicitors dated 24 June 2019 addressed to the Applicants at the address which I confirmed with the First Applicant was their current home address.  That letter enclosed by way of service a copy of the Response filed with the Court on 24 June 2019.  The letter also stated expressly that the matter is listed for a First Court Date on 4 July 2019 at 9:30am before a Registrar at Law Courts Building, Queens Square, Sydney.  The letter went on to state that the Applicants are required to attend Court on this occasion and that if they did not attend, the First Respondent may without further notice seek orders, “…that your application be dismissed with costs.”

9. The First Applicant says that the family live in shared accommodation, that he did not receive the letter dated 24 June 2019, and that somebody must have misplaced it.  He continued to give evidence from the Bar table, and I required that he proceed to give evidence under oath.  His evidence was that his home address and his email address remain unchanged, and were as set out on the Application (I note that this evidence is consistent with that he had proffered on his previous appearance before me).  Whilst the First Applicant has changed his address for service to a P.O. Box, that address, he says, is also his address.  I note that the notice of change of address was only filed on 22 July 2019, and that the email address has remained the same, as has his telephone number.

10. The First Applicant’s evidence has shifted during the course of this hearing.  He first said that he did not receive any mail regarding the First Court Date.  He said he could not read English, and therefore he could not confirm by looking at the documents whether he had a hearing date or not.  He then said he was waiting for some kind of notice from the other party regarding the First Court Date. 

11. In relation to the application for judicial review, as I have noted earlier in these reasons, the First Applicant said one of his friends who reads English helped him out and prepared all the documentation, gave it to him and he was the one who filed it.  He says he did not show the application to his friend after filing it, notwithstanding under cross-examination accepting that the application was important to him.  The import of this evidence was that it was an important matter to him, but he did nothing with the sealed application he received, which on the sealed copy clearly set out the date, time and place of the First Court Date. 

12. His evidence then shifted to saying that he did look at the First Court Date on the sealed application, but he was confused so he did not understand it.  His evidence was then that it was confidential, so he could not share that information, people were working, and so they were busy, and it was difficult to find a person who spoke English.  He said he did not want to share all his private information with his friend who had helped him with his application after he had filed the documents.  He then said he did not want to share his information regarding his protection Visa application, and says it was a mistake that he did not look at the document. 

13. His evidence was unconvincing and inconsistent.  I do not accept that the First Applicant was not aware of the First Court Date from the face of the sealed application. 

14. Turning to the grounds of review, I asked the First Applicant whether he pressed ground 2 in the light of the Tribunal’s decision at [54], which is as follows:

    [54]The Tribunal asked the applicant if he had any other evidence to give. He indicated he had nothing else to tell the Tribunal. It asked if he wanted the Tribunal to talk to his wife. He indicated she had nothing to do with it and the Tribunal did not need to talk to her.

    The First Applicant’s attention having being drawn to that statement, and it being translated for him, he said “I can’t remember what happened.  It is a long time ago”. 

15. I asked the First Applicant whether he wished to say anything in relation to ground 1, which had been interpreted to him.  At this point the First Applicant said that he could not make any written submissions because his wife had become sick last week, and I invited him to give oral submissions.  He proceeded to make submissions on the merits of his substantive application.  I asked him to concentrate on ground 1, and in response to which he said he told his story to the Tribunal, and the Tribunal did not give proper consideration to his claims, the Tribunal did not believe him. 

16. Mr Baddeley submitted that the directions I gave last Monday, 23 September 2019, were clear as to the steps the First Applicant had to take.  He has not taken any of them, and indeed, has not taken any steps since the Application was filed on 22 July 2019.  Mr Baddeley the First Applicant knew at some point that he was going to have to provide an explanation to the Court, and he had more than enough time to do so.  Mr Baddeley submitted that the First Applicant’s explanation regarding his wife’s family illness, and caring commitments, should not be accepted, as the evidence related only to his wife’s presentation at the emergency department at Griffith Base Hospital today. 

Consideration

1. There is no satisfactory explanation before me why the First Applicant did not seek a translation of the sealed documents received from the Court in circumstances where the First Applicant accepted that the Court proceeding was important to him.  I find that the First Applicant’s explanations vague, and not convincing about why he did not seek to make himself aware of the First Court Date.  Indeed I am not persuaded that in fact he was not aware of the First Court Date.  I note here that his affidavit in support is in English and states that he did not receive any email or mail confirming the date and time of the hearing.  It does not address the fact that express notification of the First Court Date is given on the face of the sealed application. 

2. I note that the Minister does not assert any prejudice.  However, an absence of prejudice itself does not mean the application should be granted. 

3. In the circumstances however, I have made my decision having regard to the prospects of ground 1, and ground 2 of the substantive application and it is to those that I now turn. 

The substantive application

1. In relation to the substantive application, as I have noted above (at [38]), the substantive application contains 2 grounds. 

Ground 1

1. I turn to the first ground, and I note particular A, which is that the Tribunal failed to consider the First Applicant’s claim that he would face harm on the basis of his intention to seek justice for the death of his father. 

2. However, the Tribunal expressly considered and rejected the First Applicant’s claim to fear harm from Mr Singh.  The Tribunal found that the First Applicant had not provided any evidence of the claimed charges against Mr Singh, and also found that, if the First Applicant had pursued justice against Mr Singh as claimed for two and a half years, was beaten by Mr Singh, and in 2009 his father had died in suspicious circumstances, then he would have sought protection in the United Kingdom when he visited there for the second time (during the period from December 2012 to April 2013).  At [74] and [75] of its decision, the Tribunal found there was no evidence to support the claim that the First Applicant returned to India in April 2013 to seek justice for his father’s death.  The Tribunal stated at [74]:

   …The tribunal is of the view this is merely a spurious claim made to justify his voluntary return to India.  The tribunal is of the view that the Applicant did not seek protection in the UK in this period because he was not fearful of returning to India.  It is of the view this casts doubt on all of his claims regarding the breakdown of the relationship between his father and Mr Singh and his allegations that his father was killed in an accident which, he suspected, was orchestrated by Mr Singh and his followers. 

   The Tribunal did not accept that the First Applicant returned to India in April 2013 for the reasons he has given, and it was of the view his return to India demonstrates he was not fearful. 

3. The Tribunal found that the First Applicant’s evidence about his approaches to police was vague, inconsistent and lacking in detail, and the Tribunal did not accept that the First Applicant sought state protection in India which was not provided (at [75]). 

4. In relation to particular B to ground 1, as Mr Baddeley has submitted, the First Applicant did not claim to fear harm on the basis of any imputed political opinion.  His claims relied solely on a fear of harm arising from his father’s rivalry with Mr Singh. 

5. As Mr Baddeley submitted, and I accept, as the First Applicant neither expressly claimed to fear harm on the basis of his political opinion, and no such claim clearly arose on the materials, the Tribunal was not required to consider a claim that was not made: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, at [60].

1. The Tribunal rejected the First Applicant’s claims on the basis of comprehensive adverse credibility findings (see at Tribunal decision, [77]). The Tribunal also was not satisfied that the First Applicant was a person who had a well-founded fear of persecution or that there was a real chance of persecution “for any of the reasons set out in the Act” relating to all areas of India (at [78]). I accept the Minister’s submissions that the Tribunal’s above finding is a reference to s.5J(1)(a), which necessarily includes a finding in relation to the First Applicant’s claimed political opinion.

2. Accordingly, I consider that the Tribunal’s global findings in relation to the First Applicant’s father’s political opinion (namely, that the Tribunal was not satisfied that his father was a member of INLD or that Mr Singh considered the father to be his political enemy when he left the INLD) and that the First Applicant had fabricated these claims, and that the First Applicant did not face a real chance of harm “for any of the reasons set out in the Act” subsumed any claim that the First Applicant would be imputed with a pro-Congress-Party political opinion: see Applicant WAEE v the Minister for Immigration, Multicultural, Indigenous affairs (2003) FCAFC 184, at 47.

3. Ground 1 has no reasonable prospects.  It would fail. 

Ground 2

1. Turning to ground 2, this ground is contrary to the facts.  As I have set out above, the Tribunal at [54] recorded that it asked the First Applicant if he wanted the Tribunal to talk to the Second Applicant, and the First Applicant responded “She had nothing to do with it”, and the Tribunal did not need to talk to her.  In the absence of any other record or evidence, such as a transcript, to indicate that the Tribunal was requested to take evidence from the Second Applicant, the First Applicant’s contention that the Tribunal failed to take evidence from her must fail.  I reiterate that the Applicants were represented by a migration agent who was present at the hearing before the Tribunal, and further that the Applicants had the opportunity, and took up the opportunity, to provide further submissions after the hearing.  I consider ground 2 would fail.

2. It follows that I do not consider that either ground of review is arguable.

Other matters

1. There are two further matters that Mr Baddeley on behalf of the Minister has brought to my attention, as a model litigant. The first is in relation to the procedural requirements under s.424AA, and the second is in relation to notification under s.438 of the Act.

2. First, in relation to s.424AA, at [49], [52], and [53] of the Tribunal decision, the Tribunal set out the steps it took in relation to the information it considered would be the reason, or part of the reason for affirming the Delegate’s decision, and provided opportunity to comment or respond. Those steps read onto, and on their face satisfy the procedural requirements in s.424AA(1)(b).

3. In the absence of any evidence such as a transcript of the Tribunal hearing (indeed, there was no suggestion to the contrary from the First Applicant) I find that the Tribunal validly complied with s.424AA, and was therefore relieved by s.424A(2A) of its s.424A(1) obligations in relation to the three inconsistencies set out in its decision from [50] through to [58]. Those inconsistencies are: first, inconsistent evidence regarding whether the First and Second Applicants have a daughter, secondly, in relation to particulars concerning the certificate of business registration provided with the visitor-visa application, and, thirdly, inconsistent evidence regarding the oral evidence that the First Applicant had given the Delegate about when he was first threatened by Mr Singh.

4. In relation to the second matter that the Minister’s solicitor raised with the Court - in relation to s.438 of the Act - the Department file included a notification made pursuant to s.438(1)(a) of the Act over certain folios, which related to three documents:

   (a)a completed “Application and identification test details” form in relation to the applicant and the second applicant;

   (b)Departmental case notes; and

   (c)a disclosure decision checklist dated 18 March 2016.

5. The Tribunal identified the notification made under s.438 of the Act, and summarised the content of the documents the subject of the notification at [3] of its decision. It found that the stated reasons for the notification did not properly identify a basis for public interest immunity as claimed, and that there was no suggestion the documents or their content would harm the nation or public interest by disclosure. The Tribunal also found the certificate is not valid. It still advised the First Applicant of the existence of the certificate at the hearing, and at [29] of its decision, the Tribunal records it explained its view that the certificate was not valid, and went through the material the subject of the certificate. The Tribunal noted that neither the First Applicant nor his representative had any comment to make with regard to the certificate.

6. Accordingly, I find that as the Tribunal informed the First Applicant about the notification and the documents it covered, it complied with its procedural fairness obligations under the Act.  This matter then can be distinguished from MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081, and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183.

Conclusion

1. Thus, as I indicated when I commenced my reasons, I conclude the substantive application, grounds 1, and ground 2, lack any reasonably arguable prospects of success, and that no jurisdictional error is demonstrated in the Tribunal’s decision, approaching the matter on the basis as discussed by Mortimer J in CAL15. 

2. It follows that the Application in a case should be dismissed, and the First, and Second Applicants should pay the First Respondent’s costs in the fixed amount of $3000, and I will so order.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate:

Date: 30 October 2019