Coa17 v Minister for Immigration and Anor (No.2)

[2018] FCCA 428

FEDERAL CIRCUIT COURT OF AUSTRALIA

COA17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 428

Catchwords:
MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority failed to consider the applicant’s submissions – whether the Authority’s decision was unreasonable – no utility in setting aside previous order – application in a case dismissed.

PRACTICE & PROCEDURE – Application for reinstatement of proceedings – where proceedings were dismissed for nonappearance – application for reinstatement dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.r13.03C, 16.05

Applicant: COA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1835 of 2017

Judgment of: Judge Street

Hearing date: 26 February 2018

Date of Last Submission: 26 February 2018

Delivered at: Sydney

Delivered on: 26 February 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms H Aitken
Sparke Helmore

ORDERS

1. Grant leave to the first respondent for the filing in Court of the affidavit of Hailey Aitken dated 22 February 2018 and the Court dispenses with the need for the electronic filing of the same.

2. The application in a case is dismissed.

3. The applicant pay the first respondent’s further costs fixed in the amount of $1,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1835 of 2017

COA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application in a case filed on 15 February 2018 seeking an order, under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (“the Rules”), setting aside an order made by this Court on 15 December 2017 dismissing the applicant’s application under r 13.03C(1)(c), for the failure of the applicant to appear on that date. The applicant has read in support of his application an affidavit that refers to the procedural orders made by Judge Dowdy on 14 July 2017. Those orders included providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions, none of which the applicant did, within the timeframe identified.

2. An order was then made by this Court on 26 October 2017 fixing the matter for hearing on 15 December 2017. On the evidence before the Court, the applicant was sent, by email to the email address as identified on his originating application, notice of the orders made on 26 October 2017 on that date. The applicant was further sent to his email address a reminder of the hearing date on 8 December 2017 and on 8 December 2017 a letter reminding the applicant of the hearing date was also sent to the applicant’s residential address as identified on the application.

Applicant’s reasons for nonappearance

1. The applicant has suggested that he was unaware of the hearing date. The applicant explained that the reason for this was that he was in Queensland. The applicant offered no explanation as to why he could not access his email whilst in Queensland. The applicant said it was a mistake that he had not received the emails. The applicant suggested that his email address was one which actually had his full first name and then a dot and that this was the email address that was identified on the application in a case.

2. The difficulty with that proposition is there was no evidence to support that the applicant only had one email address and, indeed, the applicant’s affidavit filed on 15 February 2018 also had the same email address as identified on the originating application. Further, the Court has had tendered the first return date form signed by the applicant confirming correct the details that include the applicant’s residential address and email address. No notice of change of address was lodged by the applicant.

3. The applicant provided no satisfactory explanation as to why he did not receive the letter that was sent on 8 December 2017. The applicant said he lived with other people, but did not provide any basis upon which the Court could be satisfied the applicant had not received the letter. Further, the applicant’s affidavit failed to explain the circumstances in which the applicant allegedly became aware of the orders made by the Court dismissing the application. The Court does not accept that the applicant was not notified of the hearing date. The Court does not accept the applicant’s explanation as satisfactory for his failure to appear, and on that ground alone, the application in a case should be dismissed.

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that there were two issues, in substance, that the Court would consider. The Court explained that the first issue was the adequacy of the applicant’s explanation for delay. The Court explained the second issue was the utility in making an order. The Court explained that in this regard the Court was considering the merits of the applicant’s application and alleged grounds of error.

2. The Court explained that, if satisfied the applicant had an adequate explanation and a reasonably arguable case that the Immigration Assessment Authority’s (“the Authority”) decision was unlawful or unfair, the Court would set aside the order made on 15 December 2017 and fix the matter for hearing on another occasion. The Court explained that if not satisfied the applicant had a satisfactory explanation for his failure to appear and a reasonably arguable case that the Authority’s decision was unlawful or unfair, the application in a case would be dismissed with costs.

3. The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant’s explanation in relation to the failure to appear has already been addressed. That explanation was unsatisfactory and would not be a proper basis upon which this Court should exercise its power under r 16.05(2)(a) to set aside the orders made on 15 December 2017.

Merits of the application

1. Turning now to the merits of the application, the applicant, from the bar table, handed up a proposed amended application that was marked as exhibit B. The originating application had a bare assertion that the Authority had failed to consider the applicant’s claims in the circumstances and, accordingly, that the conduct of the Authority was procedurally unfair. The ground asserted that further details would be provided in due course. The Authority’s reasons clearly identify the applicant’s claims in paragraph 7 and they are the subject of adverse findings in paragraphs 22, 39, 40, 47, 57, 58, 64 and 67. On the face of the originating application filed in this Court, there is no arguable jurisdictional error that would give rise to any utility in setting aside the order made by the Court.

Grounds in the application

1. The amended application identifies two proposed grounds, are as follows:

   GROUND 1

   The Authority failed to consider written submissions that were put to the IAA [CB 216,1].

   Particulars

   1. The Authority invited the applicant to comment on new information it had received extracted from the DFAT 2107 report [CB 223, 4].

   2. The applicant sent in submissions on 10 April 2017 to the authority [CB 223, 5].

   3. The Authority refers to things other than the specific submissions (that the delegate failed to consider the familial connection to the LTTE due to the applicant's sister being a member of the LTTE) that was put forward to the IAA contained in the submissions on 10 April 2017 [CB 216, 1].

   4.At [CB 223, 5] and [CB 223, 6] the Authority refers to and deals with contents in the submissions of 10 April 2017, however fails to consider the submission put forward concerning the fear of harm the applicant would face due to his sister's links to the L TTE. The Authority did not mention that it had considered the specific submission about the applicant's sister that was in the written submission sent to the IAA. The court must conclude that these submissions were not considered by the IAA for this reason.

   5. The authority made findings regarding the applicant's sister's duration in the LTTE (that she served only for 2 years) without considering the specific submission that was put to the IAA which was that she served for 12 years.

   6. The Authority should have first considered the specific submissions contained in the submissions on 10 April 2017 and then proceeded in the manner it did to conclude that the sister served only for a period of 2 years [CB 226, 17] and [CB 233, 38].

   7. It was procedurally unfair to not deal with the submissions that were put to the IAA.

   GROUND 2

   The Authority's decision is so unreasonable that no decision maker would make such a decision

   Particulars

   1. The Authority accepted the applicant sister was a member of the LTTE sea tigers who underwent rehabilitation [CB 233, 38].

   2. The authority accepted the applicant's brother smuggled goods for the LTTE including weapons [CB 227, 18].

   3. The authority accepted that the applicant's brother was arrested for smuggling goods and he was imprisoned [CB 227, 18].

   4.The authority accepted that the authorities frequently visited the applicant's house because of the applicant's brother and sister's LTIE connections [CB 227, 19].

   5. The authority considered the UNHCR guidelines which states a “person with real or perceived links with the LTIE may give rise to a need for international refugee protection.”[CB 231, 32].

   6. The UNHCR guidelines the authority considered states amongst other things that persons with family links to persons closely related to persons with certain profiles could be in danger [CB 231, 32].

   7. The Authority accepted that the applicant was subjected to serious mistreatment [CB 233, 37 . The serious mistreatment at the hands of the authority included the following

   • The applicant was beaten and detained for three days [CB 233, 37].

   • The applicant was struck so hard he suffered injury including a fracture [CB 233,37].

   • The applicant was questioned several times, detained, pushed and he fell [CB 233, 37].

   • The applicant was interrogated by the STF (Special Task force) and was mistreated [CB 233, 37].

   • The STF grabbed the applicant by his genitals and placed him in a tree [CB 233, 37].

   8. The IAA made an unfair and unreasonable decision after having considered the above claims and after considering the UNHCR report.

Consideration

Ground 1

1. The first ground erroneously suggests that the Authority failed to take into account submissions sent to the Authority on 10 April 2017. The Authority’s reasons, and in particular, at paragraph 5, identify the Authority took into account those submissions and accepted there are exceptional circumstances to justify considering the same as new information. The suggested error in relation to the proposed Ground 1 of the family LTTE connections, in terms of the sister having served for 12 years, is also erroneous as it is apparent that the Authority expressly refers to the sister having served for 12 years in paragraph 9. Ground 1 fails to identify any sufficiently arguable case to give rise to any utility in setting aside the order made on 15 December 2017.

Ground 2

1. Ground 2 seeks to take issue with the legal reasonableness of the Authority’s decision in relation to the applicant’s fears by reason of his family’s involvement with the LTTE, and in particular, the role of his brother and sister, as well the UNHCR guidelines and the mistreatment that the Authority accepted the applicant had been subjected to. The essence of the error advanced was that it was unfair and unreasonable having considered all the information identified in the Authority’s reasons and taking into account the UNHCR report to make the adverse finding.

2. That ground, in substance, reflects a disagreement with the adverse findings. It is apparent from the Authority’s reasons, and in particular, paragraphs 32 and 33, that the Authority took into account the UNHCR guidelines in relation to the applicant and the applicant’s family. The Authority did not accept that the sister, who served for 12 years, identified again as such in paragraph 38, was a senior member. The Authority referred in paragraph 39 to having considered the guidelines and did not consider the applicant to be at risk of harm for reason of any links to the LTTE or imputed political opinion now or in the reasonably foreseeable future for a combination of reasons. The Authority provided reasons in that regard that were logical and reasonable. On the face of the Authority’s decision, Ground 2 fails to identify a sufficiently arguable case of jurisdictional error to give rise to any utility in setting aside the order made on 15 December 2017.

Conclusion

1. Neither the originating application, nor the proposed amended application, which was marked exhibit B, identify a sufficiently arguable case to give rise to any utility in setting aside the Court order even if the applicant had provided a satisfactory explanation for his failure to appear. The Court finds in the circumstances of the present case there would be no utility in setting aside the order made on 15 December 2017. Accordingly, the application in a case is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 March 2018