CJO19 v Minister for Immigration and Anor

[2020] FCCA 715

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJO19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 715

Catchwords:
MIGRATION – Judicial Review – extension of time – decision of Administrative Appeals Tribunal to refuse the applicant a protection visa – where applicant claims notice of hearing was not given to him – satisfied AAT sent notice of hearing – application lacks merit and an extension of time is not necessary in the interests of the administration of justice – failure to particularise any alleged jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: CJO19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 16 of 2019

Judgment of: Judge Young

Hearing date: 13 March 2020

Date of Last Submission: 13 March 2020

Delivered at: Darwin

Delivered on: 13 March 2020

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Mr Liveris

Solicitors for the Respondent: Clayton Utz Barristers & Solicitors

ORDERS

1. The application be dismissed.

2. The name of the first respondent be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3. The applicant pay the costs of the first respondent in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 16 of 2019

CJO19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

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. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“AAT”) made on 5 September 2016, affirming a decision of the Minister’s delegate made on 16 January 2015 to refuse the applicant a protection visa. 

3. The applicant’s amended application for review, which was filed on 15 November 2019 also refers to an additional decision purportedly made on 20 April 2017.  I think it is clear that was intended to refer to 27 July 2017. 

4. The decision of 27 July 2017 was a second decision of the AAT, differently constituted, following a further application for review of the delegate’s decision from 16 January 2015.  In the second decision, the AAT dismissed the application on the basis that it did not have jurisdiction to review a delegate’s decision that had been subject to a lawful process of review, having been resolved on 5 September 2016.  The reference to the decision of 20 April 2017 simply seems to be an error. 

5. The applicant is from Vietnam.  He arrived in Australia in 2013.  His refugee claims were essentially that in Vietnam he was involved in disturbances between the state and members of the Catholic Church, and that he was attacked and beaten by police and/or thugs during a demonstration in favour of the church.

6. He says that he consequently fears persecution and fled Vietnam.  Those claims were not believed by the delegate.  The delegate was satisfied that there were serious inconsistencies in the applicant’s claims, not least the failure to make any such claims in the applicant’s induction interview in 2013, where he said that he had come to Australia seeking better economic circumstances.

7. On 21 January 2015 there was an application for review of the decision of the delegate made on 16 January 2015. This was filed with the then Refugee Review Tribunal seeking a review of the delegate’s decision.  The application for review included a covering letter from the applicant’s lawyers which said that the lawyers were not the authorised recipient for CJO19 and the Tribunal should correspond directly with CJO19. 

8. In the application for review the address of CJO19 was given as [REDACTED].  On 22 January 2015 a letter was sent to that address acknowledging receipt of his application. On 28 July 2016 the AAT - evidently there had been a change of name by that stage - wrote to CJO19 to say there would be a hearing on 24 August 2016 and that he should appear before the AAT to give evidence.

9. On that date CJO19 did not appear.  According to a note on the hearing record he was “declared a no-show” at 1.30 pm.  When I pointed out to CJO19 today that the AAT had reached its decision on 5 September 2016, after his failure to appear, CJO19 said that he did not receive any notification of the hearing and that is why did not appear.

10. I asked CJO19 to give evidence about that.  He gave evidence through an interpreter after taking an affirmation.  He said that at one point he had changed address and he moved to Perth.  I asked him whether as at 28 July 2016 he was still living at the address in [REDACTED] given by him in his application.  He said he did not remember.  I asked him again. He said he was in Perth.  I asked him whether he had notified the AAT, or the Refugee Review Tribunal, of his change of address.  He said that he had notified the Department of Home Affairs.

11. I asked him again whether he had notified the Tribunal of his change of address and he said he did not know.  There being no evidence  from CJO19 that he had notified the AAT of any change of address I am not satisfied there was any irregularity in the form of notice given to him of the hearing that was to take place on 24 August 2016.

12. The AAT reviewed the decision and gave written reasons for its conclusions.  It gave detailed consideration to the claims CJO19 made, describing in detail the inconsistencies in CJO19s narrative and claims.  It was not satisfied that Australia owed protection obligations to CJO19 and dismissed the application he had made.

13. In relation to the second decision, CJO19 made a second application for review of that decision to a differently constituted AAT.  The AAT on 27 July 2017, not surprisingly, dismissed the application on the ground that it did not have jurisdiction.

14. CJO19 has sought a review of both decisions in this Court on the basis of alleged jurisdictional error.  His claims are unparticularised assertions: 

    (1)The decision was not made according to law. 

    (2)I believe I was denied procedural fairness. 

    (3)I consider that the decision did not take into account all the relevant information.

    (4)I think the decision was affected by bias. 

15. No particulars have been provided.  No written submissions have been provided.  CJO19, assisted by an interpreter in Court today, was unable to formulate any oral submissions that in any way addressed any recognisable ground of jurisdictional error. 

16. He also sought an application for extension of time on the following bases:

    (1)I was unrepresented before the AAT, contact between myself and my previous lawyer having ceased.

    (2)As an apparent consequence, I did not receive notification of the AAT’s decision or advice that there was a time limit in which to seek judicial review - either from the AAT, the Department of Immigration or from my previous lawyer.

    (3)I have moved many times in Australia, looking for accommodation, work and legal assistance.  I have tried to keep the Department of Immigration informed of changes in my details, as required.

    (4)I became aware of both matters in the course of contact with the Department of Immigration when I applied for a bridging visa.

    (5)I have language difficulties as well as a history of trauma that has impacted my mental health and therefore my ability to understand my migration process.

17. Having regard to the circumstances, I am not satisfied that CJO19 notified the AAT of his change of address. I am satisfied that the AAT sent proper notice of the hearing to the address that he had provided.  If the notification of the hearing did not come to his notice, I am satisfied that is a consequence of CJO19 failing to keep the AAT informed of where he might be served with notices. 

18. I have read the decision of the AAT made on 5 September 2016 and no error was apparent to me.  The decision of 27 July 2017 was unavoidable in all of the circumstances, that is, the AAT was satisfied that it did not have jurisdiction, there having been a previous review of the delegate’s decision that had been undertaken and completed. 

19. I am not satisfied that there is any merit to the application.  That being the case, I consider the applicant’s application for extension of time, which is made in the most general terms and giving particular weight to what I am satisfied is the lack of merit in the application, does not satisfy the test of being necessary in the interests of the administration of justice.  Accordingly, I refuse the extension of time and I dismiss the application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 27 March 2020