CLL17 v Minister for Immigration
[2019] FCCA 1242
•2 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLL17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1242 |
| Catchwords: MIGRATION – Application to reinstate application to review decision of Administrative Appeals Tribunal – no arguable ground of review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Cases cited: Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 |
| Applicant: | CLL17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRALIVE APPEALS TRIBUNAL |
| File Number: | SYG 1767 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing date: | 2 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2019 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application in a case filed on 1 April 2019 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $2,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1767 of 2017
| CLL17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRALIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
By application in a case filed on 1 April 2019, the Applicant, a citizen of Malaysia, sought reinstatement of his application for judicial review of a decision of the Administrative Appeals Tribunal dated 9 May 2017 affirming a decision not to grant him a protection visa. The Applicant failed to appear at a callover on 12 March 2019 and his matter was dismissed. He subsequently filed the application in a case.
The reinstatement application (as I will refer to it) is an application under r.16.05 of the Federal Circuit Court Rules 1999 (Cth). The Applicant relies on his application in a case and two affidavits. In an affidavit affirmed on 22 March 2019 he explained that he missed the court date on 12 March 2019 due to what he described as “my illness and unfitness for any duty”. In support of that claim, he annexed a medical certificate dated 11 March 2019 which certified that in the doctor’s opinion:
… he/she will be unfit for his/her normal work in the dates (inclusive) due to mid back pain:
FROM: 11/03/2019
TO: 13/03/2019
In addition, in his affidavit of 17 April 2019, the Applicant explained that he “fell down on the ground by accident and injured myself” so he missed the hearing time. He made other claims in that affidavit which I take to be intended to raise additional grounds of review and have considered.
As a preliminary point, I note that in submissions the Minister indicated that as the only order sought in the original application for judicial review was a writ of certiorari and the Applicant had not sought mandamus, prohibition or an injunction, he had failed to properly invoke the jurisdiction of this court. I consider that any such technical deficiency could be addressed if the application were to be reinstated. Despite this, I consider it appropriate to consider the reinstatement application.
The factors generally taken into account in this context have been discussed in a number of cases. The court would normally consider whether the applicant had an adequate excuse or explanation for his or her failure to appear on the day the proceeding was dismissed, whether there was any prejudice to the Minister if reinstatement was ordered and the merits of the substantive application. Even if an applicant has a reasonable explanation for his or her failure to appear, if there is no merit in the substantive application, reinstating the application would serve no purpose (see the discussion in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 and also see CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]-[6]). In considering the exercise of the discretion under r.16.05, I have considered these matters and all the circumstances of the case, insofar as I am able to do so on the material before the court.
First, the Applicant provided some explanation for his absence from the callover. However, it has to be said that the explanation is incomplete and not entirely satisfactory. In particular, the medical certificate appears to be in a standard form. It does not disclose the nature of the Applicant’s normal work for which he would be unfit or why his medical condition prevented him travelling to and/or appearing before the court or why he would have been unable to participate effectively at a callover. Various authorities have discussed similarly inadequate medical certificates: AQQ15 v Minister for Immigration and Border Protection [2018] FCA 345 at [3]; Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2]; MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 at [12]-[13] per Davies J; Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394 at [8] per Gray J; NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [6].
How the Applicant came to be suffering from mid-back pain is addressed in the Applicant’s later affidavit. Again, the explanation that he fell down on the ground by accident and injured himself “so I missed the hearing time” does not explain exactly how this incident made him unable to attend the callover on 12 March 2019.
The Applicant does not explain why he made no attempt to inform the court or the solicitors for the First Respondent that he could not attend the callover, even though he was evidently able to see a doctor on 11 March 2019 to obtain a medical certificate. Had he done so, the callover could have been conducted by way of telephone link, if necessary. So while some explanation has been provided to which I have had regard, it is not an entirely adequate explanation.
The First Respondent appropriately conceded that other than costs consequences and what was described as defending a case that did not have reasonable prospects of success, the First Respondent would suffer no prejudice if the case was reinstated.
However, even if the Applicant’s explanation for his failure to appear was entirely satisfactory, in this case for the reasons that follow I am satisfied that reinstatement of the substantive application for judicial review would be futile as it lacks sufficient prospects of success for there to be any utility in setting aside the dismissal order.
In that respect, I have considered the grounds in the application in light of the Tribunal decision and the material in the courtbook and also what the Applicant said today. He had, but did not take, the opportunity to file written submissions in support of his reinstatement application.
In essence, in support of his protection visa application the Applicant claimed that health department officials had demanded money which he had refused to pay, fined him and ordered him to close his business and so he had lost his income and could not pay interest on a loan from a company which then pursued him. In light of inconsistencies in his evidence and other matters, the Tribunal was not satisfied that the Applicant was a witness of truth or that he had suffered any previous harm in Malaysia.
The first ground of review is that:
The Tribunal member does not consider whether immigration officer should disclose relevant information to me.
As the First Respondent submitted, the precise complaint being made in this ground is not clear. I endeavoured to clarify this with the Applicant today. He was not able to explain what was meant by this ground.
If the Applicant’s concern is that there was some error in the delegate’s decision or approach, such a complaint does not establish even an arguable ground of judicial review in relation to the Tribunal decision. The court has no jurisdiction to review a delegate’s decision, and if the Tribunal made a decision that was not flawed, it would cure any defects and irregularities in the delegate’s decision. The Tribunal conducted a de novo review. The Applicant has not pointed to any flaw in the Tribunal decision or procedure and there is no arguable basis for ground 1.
Ground 2 is that:
The Tribunal member treats my case with bias.
The Tribunal member concerns irrelevant facts in order to reject my claims.
The Applicant had nothing to add to this ground today and did not explain what the “irrelevant facts” were that the Tribunal had considered. In his affidavit, the Applicant complained of bias on the basis that the Tribunal did not believe the evidence he gave. When asked about this, the Applicant in effect conceded that his concern was that the Tribunal did not make a favourable decision.
It is a rare and exceptional case in which actual bias can be demonstrated solely from published reasons for decision. The Applicant was given the opportunity (in directions made in September 2017) to file further affidavit evidence, including any transcript of the Tribunal hearing. He did not take that opportunity.
Insofar as the Applicant’s concern is simply that the Tribunal did not make a favourable decision, he seeks impermissible merits review. On the material before the court this is not a case in which there is any arguable basis for an assertion of bias, whether actual or apprehended. Allegations of bias must be distinctly made and clearly proved. There is nothing in the material before the court or in what the Applicant said today to raise even an arguable case that the Tribunal had reached a form of pre-judgment in the sense of being so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69] and [72]).
Nor is there anything in the material before the court to establish any arguable case of apprehended bias by reference to the hypothetical fair-minded lay-person informed as to the nature of the proceedings, the matter in issue and the conduct said to give rise to an apprehension of bias (see Re Refugee Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ at [28]).
Insofar as there is intended to be a contention that it had regard to irrelevant considerations in the sense considered in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, it is not apparent on the material before the court that the Tribunal had regard to matters to which it could not have regard.
If the Applicant disagrees with the Tribunal’s approach to the assessment of his credibility, the Tribunal’s approach in that respect is not such as to demonstrate any arguable concern. I bear in mind that credibility findings are not immune from review, but nothing was referred to by the Applicant and nor is anything apparent to give rise to an arguable case or error of the nature considered in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 in the manner in which the Tribunal made its credibility findings. It gave considered and adequate reasons detailing inconsistencies in the Applicant’s claims and its view that prioritising study and the Applicant’s repeated return to Malaysia were not consistent with his alleged fear of repercussions for not repaying an outstanding debt.
The Applicant contended generally in his affidavit that the Tribunal “breached procedural fairness” and was unfair in assessing his case. He was unable to explain further what he meant by these contentions. In the absence of any particulars, this assertion is not meaningful. As the First Respondent pointed out, there is nothing in the material before the court to suggest any arguable case that the Tribunal failed to comply with its obligation under s.425 of the Act to put dispositive issues to the Applicant in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. It is apparent from the Tribunal reasons that it put to the Applicant concerns it had, including about inconsistencies in his written claims and evidence.
In his affidavit, the Applicant also asserted that he had “lost resource of income”, and had no work, but had a huge debt and ill parents in Malaysia. These contentions, and the Applicant’s indication today that he would like the court to take into account his personal circumstances, his family and his personal safety, do not rise above seeking impermissible merits review. They do not establish any arguable case of jurisdictional error. They are not matters that support the application for reinstatement.
I have considered all the circumstances before me. In light of the absence of any utility in reinstating the application in circumstances in which there is no arguable ground of review, the application in a case should be dismissed with costs.
The Applicant has been unsuccessful. The Minister seeks costs in the sum of $2,000. The Applicant told the court that he had no capacity to pay these costs. The Applicant’s impecuniosity may be a matter that may be taken into account by the Minister in determining when and how to seek to recover costs, but it is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent.
The amount sought is reasonable and appropriate in light of the nature of this and other matters.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 13 May 2019
0
15
2