CXK19 v Minister for Immigration

[2020] FCCA 2847

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXK19 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2847

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for re-instatement – application for a protection visa – whether the Tribunal made a mistake in its decision – whether the Tribunal relied upon the Department’s decision and did not conduct its on finding – whether the Tribunal’s decision was illogical, irrational or legally unreasonable –whether there is jurisdictional error – no jurisdictional error made out – application for re-instatement is refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03

Migration Act 1958 (Cth), ss.36, 414, 438, 476

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86

FCR 547

Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of

2003

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Randhawa v Minister for Immigration, Local Government and Ethnic Affair

(1994) 52 FCR 437

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

First Applicant: CXK19

Second Applicant: CXN19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1905 of 2019

Judgment of: Judge Humphreys

Hearing date: 2 October 2020

Date of Last Submission: 2 October 2020

Delivered at: Parramatta

Delivered on: 23 October 2020

REPRESENTATION

Applicants: In person

Solicitors for the Respondents: Ms Zinn, Mills Oakley Lawyers

ORDERS

1. The application for re-instatement is refused.

2. The application is dismissed.

3. The first and second applicant’s jointly and severally pay the first respondent’s costs fixed in the amount of $1540.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1905 of 2019

CXK19

First Applicant

CXN19

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first and second applicants are wife and husband respectively. They are Chinese nationals. The first applicant arrived in Australia on 16 November 2015 as the holder of a Visitor (Subclass 600) visa. On 26 November 2015, the applicants’ lodged a combined application for protection visas, but only the first applicant made claims for protection.

2. On 22 August 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants protection visa. The delegate was not satisfied that the first applicant left China on account of a genuine fear of persecution, upon return to China. The applicants’ sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).

3. In a decision dated 5 July 2019, the Tribunal affirmed the delegate’s decision not to grant the applicants’ protection visas. The applicants then sought judicial review of the Tribunal’s decision.

4. When the matter was listed for Final Hearing on 23 July 2020, the applicants’ failed to attend. Accordingly, the Court dismissed the matter, pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

5. On 22 September 2020, the applicants’ filed an Application in a Case, seeking to have the matter reinstated. In an affidavit sworn 19 August 2020, the first applicant stated that they did not receive the letter requesting them to attend the Hearing on 23 July 2020. They believed the Court made a mistake and requested the Court to re-open their file.

Relevant legal principals in relation to Reinstatement

1. In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7], it was held that reinstatement is a discretionary matter. Three factors should be considered:

   a.   whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   b.   the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to order;

   c.    whether the applicant has a reasonably arguable prospect of success on the substantive application….If not there is no purpose in reinstating.

2. In relation to the first matter, being the reason for their non-appearance, in the affidavit sworn 19 August 2020, the applicants’ suggested that they were not aware of the time and date of the hearing. The Court file indicates that a Notice of Listing was sent to the applicants’ stated address, which is the same in the Application in a Case for reinstatement, as in the original application.

3. Further, prior to dismissing the matter, material was provided to the Court that indicated that the first respondent had emailed the applicants’ their written submissions. Included within the covering letter, was a reminder as to the time and date of the hearing.

4. The Court asked the applicants’ to confirm whether or not the email address used by the first Respondent was still the correct email address for them. They confirmed that this was the case. The first applicant conceded that they had received the relevant correspondence from the first respondent solicitors, but due to their limited English and language difficulties, were not aware that it related to the Court proceedings and did not open it.

5. The Court notes that this is in direct contradiction to the material contained in the applicants’ affidavit.

6. On the evidence before the Court, the Court is not satisfied as to the claim that the applicants’ were unaware of the time and date of the hearing and the requirement to attend. They acknowledge receiving correspondence from the first respondent’s solicitor, which included the time and date of the hearing. There is also evidence before the Court as to a Notice of Court listing, together with details of how to dial-in, that was also sent to the applicants’, well prior to the listed hearing date. The Court is not satisfied that the applicants’ have provided a reasonable excuse for their absence, when the matter was listed for Hearing on 23 July 20.

7. In relation to the second matter, being prejudice to the first respondent, the Court notes the concession made by the solicitor appearing for the first respondent that subject to costs, there is no prejudice to the Minister, if the matter were to be reinstated.

8. That then leaves the final matter, being consideration of the merits of the substantive Application for Judicial Review.

The Administrative Appeals Tribunal’s Decision

1. The Tribunal decision runs to 21 written pages and 109 paragraphs. It is a very detailed and well written consideration of the applicants’ claims. Both the first and second applicant’s gave evidence. Inconsistencies in the evidence of the first applicant and that of the second applicant, were put to the first applicant for comment.

2. Paragraphs 5 through to 13 of the Tribunal’s decision, deal with the first applicant’s evidence to the delegate. This includes the first applicant’s claims of attending a Theological College in Fujian and a dispute regarding the removal of a cross from a church.

3. Paragraphs 14 through to 35 of the Tribunal’s decision, deal with initial evidence provided to the Tribunal and an analysis of the delegate’s decision. Paragraphs 36 through to 72 of the Tribunal’s decision, deal in detail, the evidence given by the first and second applicant’s to the Tribunal hearing, on 30 May 2019. Pastor RT also gave evidence.

4. At paragraph 42 of the Tribunal’s decision, details with the first applicant’s evidence about her knowledge of Christianity. The Tribunal observed that the first applicant was able to give to the Tribunal oral evidence in relation to her Theology course and knowledge of Christianity. This knowledge was compared to the knowledge the first applicant gave to the delegate. The first applicant indicated that she could not give fulsome evidence to the delegate, because she was nervous and her mind went blank.

5. The Tribunal asked the first applicant about her preaching in China. It was noted that the first applicant claimed she had preached at 16 churches, whereas her visa application indicated she only preached at 2 churches. At paragraph 49 of its decision, the Tribunal asked the first applicant about the protest in which she claimed to be involved, in relation to the removal of a cross from a church building. Paragraph 54 of the Tribunal’s decision, deals with issues in relation to the first applicant’s passport. The Tribunal notes that the first applicant now accepts that the passport she produced was not a genuine passport, but claimed it was the travel agents fault. It was the travel agent that had sent the first applicant a fraudulent passport.

6. The Tribunal put to the first applicant, at paragraph 55 of its decision, about the delegate’s concerns that she had not attended the Theological College or worked as a Christian Clergy member in China. During the hearing, the Tribunal noted that it was able to find the Fujian Theology College on the internet, but not the Fusheng College.

7. At paragraph 56 of its decision, the Tribunal explained to the first applicant country information which indicated that if she was of adverse interest to authorities, she would have experienced difficulty in departing China. The first applicant acknowledged that the government was not interested in arresting her, but indicated that this was because she had signed an undertaking.

8. At paragraph 60 of its decision, the Tribunal put to the first applicant concerns that she would not practice Christianity if returned to China. The first applicant indicated that she feels she would bring items from the Pentecostal Church to China. The first applicant has heard that officials go undercover and search for things in underground churches.

9. Paragraphs 63 through 67 of the Tribunal’s decision deals with evidence given by the second applicant. The second applicant indicated that he rarely went with the first applicant to a church in China and that he was not baptised until arrived in Australia.

10. Paragraphs 69 through to 70 of its decision, the Tribunal deals with putting inconsistent evidence given by the second applicant, to the first applicant and her answers.

11. Paragraph 79 onwards of the Authority’s decision deal with consideration of the first applicant’s claims and evidence. The Tribunal was firstly satisfied as to the identity of the applicants’ and the fact that they are Chinese nationals. At paragraph 85 of its decision, the Tribunal noted that the second applicant was unable to provide information about the first applicant’s involvement in protests and her arrest. The Tribunal found this particularly problematic, given that the first applicant claimed it was her arrest due to protesting, that led her to discuss with the second applicant the process of escaping from China, because she did not wish to preach in an environment where there was no freedom. The Tribunal was of the view that the second applicant’s lack of knowledge about the first applicant’s involvement in the protests, casts significant doubt on the claim. It also raised concerns about the reliability of the first applicant’s evidence.

12. At paragraph 86 of the Tribunal’s decision, having considered all of the applicants’ evidence on the issue, the Tribunal was not satisfied that the first applicant was involved in organising a protest against the removal of a crucifix or cross and that she participated in such a protest. The Tribunal formed the view that the first applicant had manufactured this evidence.

13. At paragraph 88 of its decision, the Tribunal dealt with concerns regarding the graduation certificate said be from the Fujian Theological College. The Tribunal noted that the delegate recorded the first applicant did not appear to be familiar with the buildings and nearby landmarks of that institution and she was not able to locate the college on the Internet. The Tribunal noted it was not able to locate the Fusheng College, which the first applicant said was a new college that replaced the Fujian College. The Tribunal also noted its concerns at the first applicant’s evidence that the college prepared students to preach at underground churches. The Tribunal had concerns as to whether or not the graduation certificate produced, was reliable evidence.

14. At paragraph 89 of its decision, the Tribunal dealt with concerns about the second applicants’ attendance at a church in China and his evidence being inconsistent with what the first applicant had indicated. The Tribunal formed the view that it was not satisfied that the second applicant attended church in China.

15. At paragraph 90 of its decision, considering the evidence overall, the Tribunal was not satisfied that the applicants were Christians in China. It did not accept that the first applicant was trying to be a preacher and that she preached at churches in Pingtan County. The Tribunal did not accept that the first applicant prepared for and led protests against the removal of a cross or crucifix in Nanjing Church, or that she was arrested and taken to a police station. The Tribunal found that the first applicant fabricated these claims.

16. Whilst the Tribunal accepted that Pastor Tan believes about the Christian motivation of the applicants’, the Tribunal was not satisfied that they were genuine Christians. The Tribunal was of the view that the first applicant had only participated in Christian activities in Australia to strengthen her claims for protection.

17. Accordingly, the Tribunal was not satisfied that the applicants met either the refugee criteria under 36(2)(a) or the complimentary protection criteria under s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

Grounds for Judicial Review

1. The grounds of the application are as follows verbatim:

   1.   The AAT made some mistakes in making its decision.

   2.   I failed at the Department’s interview with the delegate, as at that time I was on the bail and requested to report to Auburn police office due to fake passport issue. So my mild was not function well. This led the delegate concerns that I am not a good person and my claim of attending a Theological College in Fujian was not true. The fact the Court dismissed the police’s charge and I did not have any criminal record.

   3.   Over all, the Tribunal relied too much on the Delegate’s decision and did not conduct its own finding. This is wrong as the Tribunal is independent from the Department. This mistake led the Tribunal did not believe I graduated from the Theological College and I was Christian in China. This further led the Tribunal did not believe my claim that I experienced harm by the Chinese authority due to my Christian church activities in China.

   4.   The Tribunal failed to consider my church activities I have involved for nearly 4 years in Australia, which has become the most important thing in my life. If I carry on Australian Christian faith after returning to China which is very different with Chinese church, I would be having trouble with the Chinese authority.

   5.   After the hearing, I provided the original Graduation Certificate form my Theological College in Fujian. However, the Tribunal did not conducted its examination to find out whether it is a genuine one or a fake one, but simply followed with the Department’s decision and believed it is not a genuine one. This mistake led the Tribunal did not believe that I had studied Theological course in China, and had work in local area for Christian churches. And this further led the Tribunal did not believe my claims of being harmed by the Chinese authority.

   6.   The Tribunal failed to consider the letter written by a Senior Minister Rev TAN. It reads: “as their pastor, they’d be inevitably be subject to significant harm if they return to China…”

The Applicants Submissions

1. The applicants’ appeared before the Court unrepresented. They were assisted by an interpreter. Despite Court orders, no written submissions were filed with the Court, in support of their substantive application.

2. At the commencement of the hearing, the Court confirmed that the applicants’ were in possession of the Court Book and the first respondent’s written submissions. The Court confirmed that those submissions had been interpreted to them, prior to the commencement of the hearing.

3. The Court explained that it did not have the capacity to grant the applicants a visa. If the matter was reinstated, all the Court could do, was consider whether or not there was legal error in the Tribunal’s decision. If there was no legal or jurisdictional error, the matter could not result in the outcome they sought.

4. When asked to address the grounds of judicial review, the first applicant spoke on behalf of herself and the second applicant. The first applicant felt of the Tribunal over relied upon the viewpoint of the Department. This was due to the passport issue. The Court notes that it is common ground that the first applicant was charged by Australian police, in relation to possessing and dealing with identity information, with intent to commit an indictable offence. This charge was dismissed. At paragraph 79 of its decision, where the Tribunal made no adverse findings on the basis of the issues that arose from the criminal charges.

5. The first applicant stated again that as a result of the charges, her mind was blank when she spoke to the departmental representative and she was unable to answer questions in an adequate manner. The first applicant stated the delegate did not believe that she was a promoter of her religion and they did not believe that her graduation certificate from a Theological College was genuine. The first applicant stated that she was distressed when she went to the interview and did not recover her confidence till after the police charges were dropped.

6. Since then, the first applicant has been able to start preaching again in a church, with the help of the Pastor. The first applicant submits that if the Court doubts her Christian conviction, the Court should consider the evidence of Pastor Tan.

7. In terms of the graduation certificate, the first applicant stated that it was an original copy, sent by a colleague from China. The first applicant stated that she has faith and has been following God since 1997.

8. The first applicant was asked if she had any submissions as to whether or not there were any legal errors in the Tribunal’s decision. The first applicant stated that the Tribunal did not adopt the genuine material that she provided, in support of the fact that she is a genuine Christian.

9. The second Applicant did not wish to make any submissions.

10. At the conclusion of the first respondent’s oral submissions, the applicants were asked if they had anything further they wish to add. The first applicant repeated that she still believed that the Tribunal’s decision was wrong and the material they had taken into account, finding that she was not a genuine Christian, was not true and correct.

The First Respondent’s Submissions

1. In relation to the first issue to the reinstatement, being the reason for their non-appearance on the last occasion, the solicitor for the first respondent submitted that the explanation was simply not reasonable. The evidence given today in Court, that they did not open the email, was clearly at odds with the evidence contained within the affidavit that they did not receive the listing notice.

2. In relation to the substantive grounds for judicial review, it was submitted that ground one is simply a bland assertion that the Tribunal “made some mistakes”. Without particulars, it is incapable of establishing a jurisdictional error and should be dismissed on this basis alone (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).

1. Ground two states that the first applicant failed at the delegate’s interview, that her mind was not functioning well and this led to the delegate’s concern that the first applicant was “not a good person” and her claims were false. This claim is misconceived, as the Court has no jurisdiction to review the delegate’s decision, as it was the primary decision (see s 476(2)(a) of the Act).

2. Further, the Tribunal expressly took into account the first applicant’s claim that she was nervous during the delegate’s interview (see [91] of the Tribunal decision). There is nothing to suggest that the first applicant was denied a real and meaningful opportunity to participate in the Tribunal hearing.

3. Ground three contends that the Tribunal “relied too much” on the delegate’s decision and failed to conduct its own review, which resulted in the Tribunal rejecting the first applicant’s claims that she graduated from the Theological College, was arrested and questioned by police in China and experienced harm from Chinese authorities.

4. Whilst the Tribunal in its findings and reasons, did refer to aspects of the delegates findings, this does not amount to the Tribunal failing to exercise jurisdiction to make a fresh decision. The Tribunal identified several reasons for not being satisfied the first applicant was a preacher in China, or that she or the second applicant were practising Christians in China. These included the first applicant’s inconsistent evidence about whether or not she was involved in protests in China, her unpersuasive evidence about the leadership and involvement in protests, her inconsistent evidence about the number of churches where she allegedly preached, together with other issues. These matters provided a sound basis for the Tribunal’s overall rejection of the first applicant’s factual claims. It was open to the Tribunal to rely upon the evidence given by the first applicant, of the delegate’s interview and recorded in the decision. No jurisdictional error arises.

5. Ground five deals with the issue of whether or not the Tribunal failed to independently consider whether the graduation certificate was “a genuine one or a fake one” and instead “followed” the delegate’s decision.

6. It is submitted that the Tribunal expressly considered the graduation certificate. It noted that the delegate did not accept that this was a genuine document, given the concerns about the applicant’s credibility and the prevalence of fraudulent documentation in China. The Tribunal noted the delegate found the first applicant’s description of the Theological College was not accurate. The Tribunal also noted the delegate recorded that the first applicant did not appear to be familiar with the buildings and nearby landmarks nearby the College. It was submitted that the Tribunal clearly independently considered the genuineness of the graduation certificate and simply did not follow the delegate’s decision. Whilst the Tribunal may have adopted aspects of the delegates reasoning, it independently assessed the genuineness of this graduation certificate and raised additional concerns about the evidence. Accordingly, the Tribunal did not simply follow the delegate’s decision, or fail to review the application, as required by s 414(1) of the Act.

7. Ground six contends that the Tribunal failed to consider the letter from the Pastor. This cannot succeed because the Tribunal, at paragraph 91 of its decision, expressly had regard to the statement and oral evidence of the Pastor. The Tribunal found that their attendance at church in Australia, was undertaken solely for the purpose of strengthening their protection claims. These were findings that were reasonably open to the Tribunal. Ground six has no proper basis.

8. As a matter of fairness, the first respondent notes that there were two non-disclosure certificates under s 438(1)(a) of the Act. The Tribunal expressly dealt with the two certificates in its decision and found that they were invalid. The Tribunal treated the documents therein, as it is ordinarily would have. It accepted the first applicant’s identity as claimed and accepted her oral evidence that police charges against her were dismissed. In these circumstances, no jurisdictional error arises as a result of the non-disclosure certificates.

Consideration

1. For the reasons given above, the Court is not satisfied as to the reasons given, as to why the applicants’ failed to appear at the previous hearing.

2. The Court notes the concession as to the second consideration by the first respondent. This leaves the final matter, being the merits of the substantive application.

3. It is well-established that the Tribunal is not required to accept uncritically, any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). The Tribunal made a number of adverse credit findings, in respect of both the first and second applicants. An adverse credit finding does not constitute jurisdictional error, if the Tribunal’s credit findings were open to it, on the evidence and materials before it and for the reasons it gave. In Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [552], a credit finding is sound if it was:

   …open to [the Tribunal]…based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility..

4. In terms of the individual grounds of the application, ground one is merely an assertion without any particulars. As such, it does not disclose jurisdictional error.

5. In terms of ground two, the Court agrees with the first respondent that if this ground is directed as to the delegates concerns and decision, then this is not a matter that falls within the jurisdiction of the Court, as it is a primary decision (see s 476(2)(a) of the Act). It is clear that the Tribunal made no adverse inference, in relation to the fact that police charges against the first applicant, were dismissed. The Court is satisfied that the Tribunal made an independent assessment of the first applicant’s claims, regarding attending a Theological College in Fujian, at paragraphs 87 and 88 of its decision. The Court is not satisfied that the Tribunal merely adopted the delegate’s concerns and therefore, made adverse finding about the first applicant.

6. In terms of ground three, it also cannot be sustained. The Tribunal took account of the delegate’s findings, but explored matters clearly and independently, with both the first and second applicants. The Tribunal found that the applicant’s oral evidence about her leadership and involvement in the preparation of protests, in relation to the removal of a crucifix from the church, was unpersuasive and lacking in detail (see [86] of the Tribunal’s decision).

7. The Tribunal made its own enquiries in relation to the location of the Theological College that the first applicant claims to have attended and put those concerns to her. The Tribunal took evidence from both the first applicant and the second applicant and put concerns to the first applicant, as to inconsistencies between the evidence she gave and that of the second applicant. This was appropriate and also provided the appropriate procedural fairness.

8. The Court is satisfied that the Tribunal did undertake a de novo hearing and did not rely solely upon the delegate’s adverse findings, defined against both the applicants’. This is clear from the detailed analysis of the evidence of the applicants, both to the delegate and then during the course of the hearing, including inconsistencies which arose during the course of the hearing between the first and second applicant’s evidence.

9. Ground four complains about the conclusions of the Tribunal, in relation to the applicants’ church activities in Australia. The Tribunal noted and took account of the evidence of Pastor Tan. The Tribunal accepted that the first applicant assisted in the preparation of texts and serves as a member the pastoral team. It accepted that the first applicant visits the sick and elderly. The Tribunal accepted Pastor Tan’s evidence that the second applicant has served as a Deacon. The Tribunal then balanced this evidence, against its findings that the first applicant had fabricated her claims of participation in churches in China and in protests, that she claimed led to her being arrested. The Tribunal found that both applicants’ had participated in church activities within Australia, for the purpose of strengthening their claims for protection. The Court is satisfied that this finding was open to the Tribunal, based on the evidence that was before it. The Court is not satisfied that there is anything illogical, irrational or legally unreasonable in this finding.

10. Ground five deals with the graduation certificate that the first applicant claims to be from the Theological College she attended in China. The ground complains that the Tribunal did not conduct an examination to find out whether or not it is a genuine or fake document, but simply followed the Department’s decision and believed it was not a genuine one. Firstly, there is no general obligation on the Tribunal to investigate the applicants’ claims. The duty imposed on the Tribunal by the Act, is a duty to review, not a duty to enquire (see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] and Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [25]).

11. It is clear that at paragraph 88 of its decision that the Tribunal did take into account the first applicant’s claims regarding her graduation certificate from a Theology College. The concerns of the delegate were put to the first applicant at paragraph 55 of its decision. The Court is satisfied that the conclusion that the Tribunal took with concerns as to whether the first applicant’s graduation certificate was reliable, were reasonably open to the Tribunal based on the evidence that was before it, including what appeared to be a lack of detailed knowledge about Christian principles and theology, as outlined to the delegate. The Court is satisfied that these findings were open to the Tribunal on the material before it and that the Tribunal undertook an independent assessment and review of the evidence.

12. Ground six complains that the Tribunal failed to take into account the letter written by Pastor Tan. This fails on the factual level. The Tribunal expressly referred to this material at paragraph 91 of its decision. No jurisdictional error arises.

13. The Court has noted the matters that have been raised by the first respondent, in relation to the non-disclosure certificates. The Court notes the Tribunal expressly found the certificates were invalid and treated the documents as it ordinarily would have. No jurisdictional error arises as a result. The Tribunal accepted the first applicant’s oral evidence that the charges against her were dismissed and made no adverse finding. Accordingly, no jurisdictional error arises as a result of this issue.

14. While each of the grounds of appeal has been dealt with separately above, the Court is satisfied that many, if not all the complaints, are merely expressions of dissatisfaction with the conclusions reached by the Tribunal. The applicants’ complaints, such as they are, in most cases merely invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] and [54]).

15. As the applicants’ are unrepresented, the Court has in addition, perused the decision of the Tribunal and cannot find any jurisdictional error which has not been unarticulated by the applicants’.

16. Given the Court is not satisfied as to the reasons given for the non-appearance on the last occasion and as outlined above, the substantive application has no reasonable prospects of success, the Court declines the application to reinstate the matter.

Conclusion

1. Accordingly the application for reinstatement is dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 23 October 2020