DAE18 v Minister for Immigration

[2020] FCCA 1703

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAE18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1703

Catchwords:
MIGRATION – Visa – protection visa – application for review of decision by Immigration Assessment Authority – interlocutory application for reinstatement of proceedings – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 473DD

Cases cited:

AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111

CSR16 v Minister for Immigration & Border Protection [2018] FCA 474

DLB17 v Minister for Home Affairs [2018] FCAFC 230

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

Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217

Applicant: DAE18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1627 of 2018

Judgment of: Judge McNab

Hearing date: 17 June 2020

Date of Last Submission: 17 June 2020

Delivered at: Melbourne

Delivered on: 26 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Counsel for the Respondents: Mr Hosking

ORDERS

1. The interlocutory application for reinstatement of proceedings filed on 20 February 2020 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3,737.00.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1627 of 2018

DAE18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an interlocutory application for reinstatement of proceedings filed on 20 February 2020 pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). This proceeding was dismissed by Registrar Hird on 4 September 2019 under rule 13.03C(1)(c) of the Rules because of the applicant’s non-attendance at a directions hearing.

2. By his original application filed 8 June 2018, the applicant sought judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 11 May 2018. The Authority’s decision affirmed a decision of a delegate (‘the delegate’) of the first respondent (‘the Minister’) refusing to grant a Safe Haven Enterprise Visa (‘SHEV’).

3. The matter was heard on 17 June 2020.

4. For the reasons which follow I have concluded that the application in a case should be dismissed.

Background

1. The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia on 8 November 2012 as an unauthorised maritime arrival.

2. On 10 February 2013, the applicant completed an entry interview.

3. On 31 August 2016, the applicant applied for the SHEV.

4. On 22 December 2016, the delegate invited the applicant to an interview.

5. On 13 January 2017, the applicant attended the interview.

6. On 18 January 2017, the applicant’s migration agent provided to the delegate written submissions which raised a new claim, the particulars of which are referred to at [9] of the Authority’s decision.

7. On 12 September 2017, the delegate refused to grant the SHEV, finding that the applicant did not meet the criteria in section 36(2)(a) or (aa) of the Migration Act 1958 (Cth).

8. On 15 September 2017, the matter was referred to the Authority.

9. On 19 September 2017, the Authority requested further documents from the applicant.

10. On 5 October 2017, the applicant’s representatives provided further submissions to the Authority.

11. On 11 May 2018, the Authority affirmed the delegate’s decision not to grant the applicant the SHEV.

12. On 8 June 2018, the applicant applied to this Court for judicial review of the Authority’s decision. That application was listed for directions on 4 September 2019. The time and date of the directions hearing were set out on the filing cover sheet generated on 8 June 2018. As noted above, the applicant failed to attend that hearing, with the result that his application was dismissed under r 13.03C(1)(c) of the Rules.

Applicant’s submissions

1. The applicant says he provided a reasonable, ‘if not perfect’, explanation for non-attendance set in his affidavit dated 20 February 2020, which includes that:

   a)he is not literate in English;

   b)he required free legal assistance to bring his application to the Court;

   c)in the course of applying, an email address that he does not use was listed as the primary contact point for him; and

   d)he checked his email ‘by happenstance’ and learned of the dismissal at which point he took prompt steps to bring his reinstatement.

2. Further, the applicant contends that the Minister does not suffer any prejudice and there is no material injury to the public interest in allowing his application to proceed. Regarding the delay, the applicant says that it is ‘not long, two months or so’.

3. Regarding merit, the applicant say there is ‘an irreconcilable tension’ in the Authority’s reasons for its decision not to consider new information from the applicant, comprising a new claim. At [9] of his submissions, the applicant claims that the Authority’s refusal to admit the new information for consideration:

   […] affected the consideration of whether to admit country information about the profile of those who participate in “Heroes Day” celebrations, and in turn, whether the applicant’s claims to his family continuing to be monitored were credible.

First respondent’s submissions

1. The Minister says that the applicant has not provided an adequate explanation for his failure to attend the directions hearing on 4 September 2019 and he does not have a reasonable chance of success on the substantive application.

2. The Minister submits that the applicant’s submissions do not constitute an explanation for the applicant’s failure to attend the hearing, let alone an adequate explanation.

Consideration

1. The principles relating to reinstatement applications are set out in MZYEZ V Minister for Immigration and Citizenship [2010] FCA 530 at [7]. In exercising discretion to reinstate a proceeding that was dismissed as a result an applicant’s failure to appear, this Court should have regard to the following factors, considering whether, on balance, the factors tend for or against the reinstatement:

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

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

   c)whether the applicant has a reasonably arguable prospect of success on the substantive application.

2. At [9] of the Authority’s decision dated 11 May 2018, the reasons provide:

   The new claim, that the applicant attended Heroes Day events in Australia in 2016 and one other time a few years ago to commemorate the deaths of LTTE fighters, relates to events that would have been known to the applicant for some time prior to the SHEV interview. I am satisfied that this amounts to credible personal information for the purposes of s.473DD(b)(ii). The lawyer states that the applicant did not mention these events earlier because his former representative never asked him if he had attended these types of events and given the applicant’s age at the time he did not realise the importance of disclosing this information. At the time of the SHEV interview the applicant would have been almost 20 years of age and he was advised in that interview that it was his responsibility to provide all his claims and supporting information as early as possible, including in that interview. He was also asked on more than one occasion if there were any other reasons he feared returning to Sri Lanka. In the SHEV interview the delegate clearly advised the applicant he did not think the applicant would be of any interest to the authorities in Sri Lanka based on his profile and that he did not understand why the authorities would be looking for him now. I find the applicant’s explanation for not having mentioned his attendance at these events earlier, particularly given the events commemorated the deaths of LTTE fighters and his central claim was that his links to the LTTE brought him under suspicion, unsatisfactory. There are no details of when or where these events took place (except in the broadest possible terms) and the applicant has provided no other evidence to corroborate this claimed attendance. I am not satisfied that exceptional circumstances exist to justify consideration of the information.

3. The sole ground of review that the applicant seeks to rely upon is outlined in a draft amended application which is appended to the applicant's affidavit in support of the application. That ground provides:

   1. The IAA misunderstood the notion of “exceptional circumstances”, at [9], in that it accepted that the proposed new claim was “credible personal information” yet it went on to find that there were no exceptional circumstances for reasons that suggest that the new information / claim was not credible (being too vague). In that sense, the two points are in tension - there being a positive finding on 473DD(b)(ii) and a negative finding on credibility under s 473DD(a). (to be edited (sic))

4. The submissions filed on behalf of the applicant provide that it was significant that if the information is credible, it is capable of being believed and the Authority either:

   (i) failed to give attention to its acceptance that this information was “credible”, and so, did not consider the probative value of this information; or

   (ii) insofar as it is to be regarded as having considered the probative value of this information, the inference is that the [Authority] did not think that the information was credible, which is irreconcilable with its earlier finding that it was credible.

5. In the course of oral submissions made to the Court, counsel for the applicant concentrated on the findings at [9] of the Authority's decision and, in particular, the penultimate sentence:

   There are no details of when or where these events took place (except in the broadest possible terms) and the applicant has provided no other evidence to corroborate this claimed attendance.

6. It was asserted in submissions that there was a failure to make findings as to why the material going to the new claims was not accepted by the Authority for further consideration.

7. In my view, the applicant has not provided a sufficient basis to warrant the setting aside of the order made by the registrar on 4 September 2019.

8. The explanation for failing to appear at the hearing arises because of the applicant’s own lack of care. He gave evidence that although the he ‘did not use his email address to correspond with anyone’ he provided both his email address and his physical address to the lawyers who assisted him prepare his application for judicial review. The applicant's email address and his physical address had been included in the application for judicial review. The applicant says that he assumed that the Court would contact him by post at his physical address and notify him of the hearing. He also gave evidence that, although he did not use his email address, he opened his email on 22 November 2019 and discovered correspondence from the Court indicating that his application for judicial review had been dismissed.

9. The applicant himself states that his failure to attend the hearing on 4 September 2019 was because of a failure to appropriately manage his legal affairs. The affidavit in support shows that he had access to community legal services and had had the assistance of lawyers in lodging the application. Whilst the applicant’s counsel stated that there was no basis for suggesting that the applicant was gaming the system or was using delay to advance his position, in my view, that of itself does not provide an adequate explanation for his failure to attend at the directions hearing.

10. The ground advanced for judicial review of the second respondent’s decision does not have any reasonable prospects of success. The requirements of s 473DD(a) is cumulative on the requirements in s 473DD(b); see Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217 (‘Plaintiff M174’) at [29-31].

11. In CSR16 v Minister for Immigration & Border Protection [2018] FCA 474, Bromberg J held at [41]-[42]:

    [41] In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

    [42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration & Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

12. I see no error in the manner in which the Authority approached its task in assessing the applicant’s submissions regarding the Heroes Day events in 2016. Bromberg J’s statement (set out above) effectively deals with the submission that has been raised by the applicant regarding the tension between, on the one hand, the Authority accepting that the information may be credible, but otherwise not accepting that information or finding that it should be received.

13. As to the sufficiency of the findings, I refer to DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22] where the Full Court of the Federal Court of Australia held:

    [22] In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]–[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances.

14. In this case, in circumstances where the Authority was satisfied that the information amounts to credible personal information for the purposes of s 473DD(b)(ii), it was clearly entitled to then find that the information did not satisfy it that exceptional circumstances exist to justify consideration of the information. The reasons provided were sufficient and there is no failure to make findings, if such findings were required to be made.

15. For these reasons the application for reinstatement of the proceeding will be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 26 June 2020