DCB17 v Minister for Immigration
[2017] FCCA 3104
•25 September 2017 (ex tempore)
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DCB17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3104 |
| Catchwords: MIGRATION – Where application dismissed by Registrar – application to reinstate proceedings – inadequate explanation for non-attendance – applicant seeking impermissible merits review in substantive application – substantive application having no reasonable prospects of success – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 |
| Applicant: | DCB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 281 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 25 September 2017 |
| Date of Last Submission: | 25 September 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 25 September 2017 (ex tempore) |
REPRESENTATION
| The Applicant: | In Person with an interpreter |
| Counsel for the Respondent: | Mr J Grant |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The Application in a Case filed 12 September 2017 is dismissed.
The Applicant is to forthwith pay the First Respondent’s costs in the amount of ONE THOUSAND TWO HUNDRED AND FIFTY DOLLARS ($1,250).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 281 of 2017
| DCB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEARLS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Reasons settled from transcript)
This matter is an Application in a Case filed by the applicant seeking to set aside the orders made by Registrar Parkyn on 18 August 2017. The applicant filed an Application for Judicial Review on 11 July 2017. On that day, he was given a Notice of Filing and Hearing. That Notice indicated that the first mention date was on 18 August 2017. The applicant failed to attend on that occasion, and as a result, the Registrar dismissed his application and awarded costs against him in the amount of $1,331. The Application in a Case was filed on 12 September 2009.
The applicant seeks that I set aside the order made by Registrar Parkyn dismissing his application and asks the Court to reinstate the proceedings so that he can pursue his application for judicial review. In support of this Application, the applicant filed an affidavit. That is dated 11 September 2017. In that affidavit, he repeats the grounds of application in his initial application and provides an explanation for not having attended Court on 18 August 2017.
I will quote verbatim from that affidavit and the reasons that were provided:
“Reason for not attending Court hearing. “I had applied for the Federal Circuit Court on 11 July 2017. I had hearing on 18/08/2017. My friend apply for curt same day as I do, he got the letter not to come for hearing from Immigration lawyer and then they give him 22/6/2018 date of hearing. I donot get any email and wait for email. I get no email from so I call court they tell me my application dismissed. I donot know the legal process. My friends help me out. My friend do not go for hearing so I wait for email. I donot have money to travel to Adelaide. I come only when my friends come as I have no money for tickets. Please consider my application.”
The applicant made brief oral submissions before me this morning. He denied having received a letter from the solicitors for the first respondent that pointed out the date for the first court date and which also provided him with a copy of its Response. He did, however, confirm that the address on that letter was his address, and I note that it is the address that he provided as his address for service when he filed his application. I further note that the letter indicates that it was sent by registered post.
The applicant has said to me in submissions that he wishes to pursue his application for judicial review.
In his submissions for the first respondent, Mr Grant referred me to the decision of the Federal Court in MZYEZ v Minister for Immigration & Citizenship[1], at paragraph 7, where the well-established principles relating to reinstatement are summarised. In covering those principles, Mr Grant submitted that the explanation provided by the applicant was inadequate, particularly given that it was his application and his responsibility to prosecute that application.
[1] [2010] FCA 530.
He made the very proper concession that the first respondent really could not be seen to suffer any significant prejudice if the application was reinstated.
Mr Grant made a final submission that the application to reinstate should be dismissed because there was simply no merit in the underlying application for judicial review. The grounds of the application for judicial review are as follows (verbatim):
“Tribunal said in the judgment the below points
‘Even taking the claims at face value, the applicant says he borrowed money to support his family and to support his travel to Australia. However, the money was in fact borrowed in the name of another brother in Malaysia because that brother was employed full-time. The amount of money the applicant claims to have sent to his brother in Malaysia to re-pay the debt is quite small. There is no claim or evidence the brother in Malaysia has been unable to keep up with loan repayments, and no claim or evidence that brother or anyone else in the family have been harmed or threatened by the money lender.
17. The applicant has not claimed, and there is nothing to suggest, that he fears persecution for reason of his race, religion or nationality. The applicant has admitted the claims in his application to fear persecution for reason of political opinion as a protestor are not true. In respect of a claim that he may fear persecution if his brother is pursued for an unpaid loan, as a member of a particular social group comprising his family, the Tribunal finds s.5K has the effect that such a fear is to be disregarded. Section 5K operates such that a person who fears persecution because they are a relative of a person who is targeted for a non-refugee reason will not have a well-founded fear of persecution. The Tribunal finds the applicant does not have a well-founded fear of persecution for any of the reasons listed in s.5J(1) and therefore finds he does not meet s.36(2)(a).’
I tell tribunal that my brother take money for me and if I do not pay my brother back then it’s a problem. He will not be able to pay to the money/lenders and these people will trouble him. If I go back then they trouble me too. These people good with government and no scared of anyone. Tribunal fail to understand the problem. I answered tribunal whatever they asked me. They donot understand the situation and just refuse my visa.”
Mr Grant made the submission that what was really being sought by the applicant was a merits review, and that it is well-established that that is not the role or function of this Court.
I have considered the materials filed and provided by both parties.
I am satisfied that if I reinstated the proceedings the first respondent would be unlikely to experience any prejudice. However, I am not satisfied that the applicant has provided a reasonable explanation for failing to attend at Court on 18 August 2017. Further, having considered the grounds of application, I am not satisfied that that application establishes any ground alleging jurisdictional error on the part of the Tribunal. The applicant’s application appears to be a very strong disagreement with the conclusion reached by the Tribunal.
Whilst the categories of jurisdictional error are not confined, they do not permit this Court to undertake a fact finding function or a merits based review.[2]
[2] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
I am not satisfied that the applicant has a reasonable prospect of success on his substantive application. I am not satisfied that a substantial injustice would occur by my refusing to reinstate the proceedings.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 13 December 2017
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