CMJ15 v Minister for Immigration

[2016] FCCA 1249

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMJ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1249

Catchwords:
MIGRATION –Administrative review – application to set aside order pursuant to r.16.05(2)(a) – application dismissed – applicant pay respondent’s costs.

Legislation:

Federal Circuit Court Rules 2001 r. 13.03C(1)(c)

Applicant: CMJ15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1098 of 2015

Judgment of: Judge Vasta

Hearing date: 16 May 2016

Date of Last Submission: 16 May 2016

Delivered at: Brisbane

Delivered on: 16 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Jones

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Application in a Case filed 9 March 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1098 of 2015

CMJ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By interlocutory application filed on 9 March 2016, the Applicant CMJ15 seeks reinstatement of his application for review that he had filed on 25 November 2015. 

2. In October 2015, the Administrative Appeals Tribunal had affirmed a decision of the delegate of the Minister to not issue a protection visa to CMJ15.  CMJ15 sought review in this court.  Upon filing his originating application and supporting affidavit, he was given the date by the Registry of 9.30 am on 8 February 2016.  The Minister also sent a letter to the Applicant on 15 December 2015 at his address for service, which reminded him of the date and gave him a number of places where he could look for legal assistance if needed.

3. On 8 February 2016, there was no appearance for the applicant.  I then proceeded pursuant to r. 13.03C(1)(c) of the Federal Circuit Court Rules 2001 and I dismissed the application in default of appearance.  This application to reinstate is pursuant to the rules. 

4. It is a discretionary matter for me.  In doing so, there are three main principles that I need to take into consideration in the exercise of the discretion.  Firstly, whether there is a reasonable excuse for the failure to attend. Secondly, what prejudice is there to the respondent to the application; and, thirdly, is there a substantial chance of success of the application if it were reinstated. 

5. In this case, Mr Jones, who was has very helpfully assisted me, is acting for the applicant and submits to me that this was a matter where, even though the applicant was given the date there and then at the time that he lodged the application, he simply overlooked it.  When Mr Jones pointed out where it was on the actual paperwork, Mr Jones said it was as if it were a “light bulb” moment and that the applicant understood that that was when he was supposed to be here.  He does claim, however, that he did not receive the letter from the Minister. 

6. However, that letter was sent to his address for service, and it was sent to his address some three weeks after the applicant had lodged his claim before this Court and given an address for service.  The letter was never returned to the Minister as being undeliverable or “not at this address”, and it would seem also that my order of 8 February would have been sent to that address as well.  If it had not, one wonders how the Applicant found out that I had dismissed his application. 

7. So when having a look at whether there is a reasonable excuse, I’m not of the view that simply overlooking the date is a reasonable excuse.  However, one does have to take into consideration the fact that the applicant is a foreigner who does not speak English as a first language.  He is not allowed to work in this country.  He is surviving from the generosity of others and would be under, one could surmise, quite a deal of stress.  So one does have to take into account all of those matters as to whether this was simply a mistake and a reasonable one. 

8. However, this is only one part of the matter that I have to look at.  The second part as to whether there is any prejudice to the respondent, it has been fairly conceded by Ms McConnell for the respondent that there is no such prejudice. 

9. The question, then, is whether or not there is a likelihood of success.  When one has a look at the grounds of the application, they seem to be a reiteration of his arguments before the Administrative Appeals Tribunal.  They are:

   “(1) the Applicant claims to be a citizen of Iran. 

   (2) On 1 July 2013 the Applicant, an unauthorised maritime arrival applied for a protection visa under s.65 of the Migration Act 1958 (Cth), having arrived on mainland Australia prior to 1 June 2013.

   (3) The basis of the Applicant’s application is that he has a well founded belief, should he be returned to Iran he will face a real risk of significant harm from persecution from government and religious authorities because: 

   (a) Whilst in Iran he no longer practised or regarded himself as a Muslim, and

   (b) He was recruited in the Iranian army and performed duties of a guard at several prisons.  In this capacity and subsequently he spoke out about the ill treatment of prisoners. He was imprisoned and beaten,  and

   (c) If returned to Iran, he will return on a laissez-passer, as while on en route to Australia he destroyed his Iranian passport.

   (4) On 20 November 2014 the First Respondent, through a delegate refused to grant a protection visa to the Applicant. 

   (5) The Applicant lodged a review of the First Respondent’s decision not to grant a protection before the Second Respondent. 

   (6) On 19 October 2015 the Applicant sought a postponement of the hearing of his application for a review on medical grounds. 

   (7) The Second Respondent did not afford the Applicant a postponement and the hearing proceeded on an ex parte basis.  The Second Respondent affirmed the decision of the First Respondent, 

   (8) The Second Respondent, by not postponing the hearing until the Applicant was sufficiently fit to attend the hearing to give further evidence as requested by the Second Respondent, engaged in jurisdictional error, in that the Second Respondent failed to provide the Applicant with procedural fairness.”

10. When one has a look at the reasons of the Tribunal it is apparent that there was an application for an adjournment.  The reasons point out that on 14 August 2015, the Tribunal wrote to the Applicant advising that it considered the material before it relating to the application but was unable to make a favourable decision on that information alone. 

11. They invited the Applicant to give oral evidence and present arguments at a hearing on 20 October 2015.  The Applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice.

12. On 21 September 2015, the Applicant’s representative wrote to the Tribunal in the following terms:

    “We are writing to inform you that [CMJ15] has recently had an accident which has left him with a badly broken leg.  There has also been abnormal complications and he will require extensive surgery.  He may not be fit to attend the scheduled hearing of 20^th of October 2015. 

    We have attached a letter from a doctor but because it is a bit early to exactly know of his condition on that day, we will inform you and provide you with the medical information as it gets closer to date. “

13. The doctor’s letter, which was from a doctor at the QEII hospital and dated 9 September 2015, simply talks of the applicant having a recurrent infected cyst on his left buttock and that the doctor believes he needs an excision. 

14. The Tribunal responded to the representative noting that the medical evidence related to the cyst rather than the leg fracture, and the representative wrote to the Tribunal in the following terms on 19 October 2015:

    “Following our previous email dated 21^st of September 2015, we received further information regarding [CMJ15]’s medical condition. 

    [CMJ15] has advised that since his leg fracture his psychological health has also deteriorated significantly and he is currently seeing a psychologist to assist him with dealing with his issues.

    We kindly request that the hearing for tomorrow is adjourned so [CMJ15] can recover from his physical and psychological problems. 

    We have attached two letters confirming these issues.  We are waiting to receive further information, which we will send to you as soon as we receive them.”

15. The first attachment was another letter from the QEII Hospital dated 15 October 2015.  The letter noted that the applicant was a category 2 patient requiring a semi-urgent appointment.  The second letter was from a Saladin Talavanic, a psychologist, dated 15 October 2015, which said:

    “I am writing to advise you that [CMJ15] current has psychological issues that impair him from participating in his usual activities.  I am currently treating [CMJ15] for these psychological issues.  I will be reassessing [CMJ15] in the near future. “

16. The Tribunal refused the request for a postponement and advised the representative.  The representative then responded by saying:

    “I have spoken to the applicant and have explained the attached letter. 

    He has advised that he has recently been struggling to conduct his day-to-day activities as usual because of his psychological problems.  He has advised that he will not be able to attend the hearing as scheduled because he will not be able to discuss his case and respond to questions as he normally would because of his psychological issues. 

    I’m waiting to receive further information regarding [CMJ15]’s condition from his psychologist and as soon as I do, I will forward them to the Tribunal, but regrettably our client will not be able to attend the hearing as scheduled tomorrow.”

17. So the Tribunal in its reasons then looked at a summary of the evidence before it and said that:

    ·The applicant foreshadowed the possibility of an adjournment request over 4 weeks before the hearing.

    · The applicant provided medical evidence that he has a cyst in his left buttock. 

    ·The applicant claimed that he has a fractured leg, but has provided no evidence (medical or otherwise) to support this claim.

    ·The applicant claims to have psychological issues arising from his claimed leg fracture.

    ·The applicant has provided psychological evidence which does not specify what condition (if any) the applicant is suffering from.  The evidence also does not express the opinion that the applicant is unfit for either work or a Tribunal hearing on any particular dates.

    ·The applicant claims to be awaiting further evidence on his condition.

18. Given all of that, the Tribunal did not find that it was appropriate to delay its decision to allow the Applicant time to make further attempts to rectify the unsatisfactory state of his medical evidence.  The question for me, if I were to hear this matter as of right, is that the only matter in which the Applicant could claim that there is a jurisdictional error is the Tribunal not granting an adjournment and instead proceeding to look at the merits of the matter on the material. 

19. It seems to me that in looking at whether a jurisdictional error has occurred, the question for me is: was the decision of the Tribunal open?  That is, was it open for the Tribunal, on the evidence, to decide that the medical evidence was insufficient for it to grant the adjournment. 

20. The question is not whether I would have granted the adjournment at that time; it is whether it was open for the Tribunal to come to that decision. In my view it was clearly open for the Tribunal to come to that decision. 

21. The state of the evidence before it was, in some ways, deplorable.  There was no application for phone evidence or anything of that sort of nature that would have allowed the Applicant to still participate.  It was simply, “Well, he has psychological issues.  He is not coming in.” 

22. The paucity of that material, to my mind, was sufficient for a Tribunal not to delay the matter and simply proceed to deal with the matter as it did. 

23. So I, as presently advised, could not see that there was any jurisdictional error. 

24. Having come to that conclusion, I then look at that aspect together with the clearly unsatisfactory explanation as to why there wasn’t an appearance on 8 February 2015. 

25. Taking all those matters into consideration, I decline to exercise my discretion to reinstate this application, and so I therefore dismiss the interlocutory application. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:25 May 2016