DCW19 v Minister for Immigration

[2020] FCCA 2427

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCW19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2427

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – application for reinstatement after failure to appear – whether arguable case on the merits – whether reinstatement would be warranted in the interests of the administration of justice – no arguable case on the merits – no jurisdictional error made out by grounds of application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 5AAA, 426A

Federal Circuit Court Rules 2001 (Cth), r.16.05

Applicant: DCW19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2094 of 2019

Judgment of: Judge Street

Hearing date: 31 August 2020

Date of Last Submission: 31 August 2020

Delivered at: Sydney

Delivered on: 31 August 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Mr J Pipolo, Mills Oakley, via Microsoft Teams.

ORDERS

1. The application in a case for reinstatement is dismissed.

2. The applicant pay the first respondent’s further costs fixed in the amount of $500.00.

DATE OF ORDER: 31 August 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2094 of 2019

DCW19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for reinstatement of proceedings, under rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), that were dismissed on 23 July 2020.

2. The substantive proceedings seek a Constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 July 2019, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa. 

3. The applicant was found to be a citizen of Malaysia and his claims were assessed against that country. 

4. The applicant arrived in Australia on 9 July 2004 and departed Australia on 28 July 2004. The applicant last arrived in Australia on 1 March 2017.  It was not until 26 May 2017 that the applicant completed an application for protection that was provided to the Department of Immigration on 29 May 2017. 

5. The applicant claimed to fear harm from a ‘Malay group’, and on 24 October 2017, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.

6. The Tribunal wrote to the applicant on 24 May 2019 by email sent to the applicant’s email address identified on the review application, inviting the applicant to attend a hearing on 24 May 2019. The Tribunal found that the applicant had been properly invited to attend the hearing, and noted that the applicant had also been sent two SMS reminders of the hearing date. It was in those circumstances that the Tribunal decided to proceed to determine the matter under s 426A of the Migration Act 1958 (Cth) (“the Act”). That was a reasonable and logical step for the Tribunal to take and the reasons provide an evident and intelligible justification for the Tribunal deciding to proceed to determine the matter under s 426A of the Act.

7. The Tribunal referred to the applicant’s claims, and the failure of the applicant to appear to permit the Tribunal to test the same, including reference to s 5AAA of the Act, that it was for the applicant to provide sufficient evidence to establish his claims. 

8. The Tribunal found that the applicant did not have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or for political opinion.

9. The Tribunal found that the applicant failed to meet the criteria for the grant of a Protection visa under ss 36(2)(a) and 36(2)(aa) of the Act. 

Before the Court

1. These proceedings were commenced on 15 August 2019, and on 5 September 2019, a Registrar of the Court made orders fixing the matter for a show cause hearing and providing the applicant an opportunity to file an amended application, affidavit, evidence and submissions. The applicant has provided an affidavit in support of the application for reinstatement, and the Court explained to the applicant at the commencement of the hearing the nature of the reinstatement application. The Court conveyed to the applicant that it was willing to accept the applicant’s explanation for his failure to appear as being satisfactory. 

2. Although invited to do so, the applicant provided no submissions in support of the grounds in the application or as to why the Tribunal’s decision was the subject of a reasonable argument of error. 

3. The Court is not satisfied that the three grounds identified in the applicant’s application identify any reasonably arguable case of jurisdictional error. 

4. The grounds in the originating application are as follows:

   Jurisdictional errors were made.

   1.AAT considered my case unfairly.

   AAT believed I was not at risk in terms of some unfair assumptions.

   2.AAT did not fully consider I would be harmed after I return to Malaysia due to my Chinese ethnicity.

   3.The Tribunal did not ask me to provide evidence to support my claims.

Ground 1

1. In relation to ground 1, the Tribunal’s decision to proceed to determine the matter where the applicant failed to appear cannot be said to be unreasonable in the circumstances of this case. Accordingly, the Tribunal’s decision to proceed with the hearing cannot be said to be legally unreasonable. 

2. Where the applicant failed to appear before the Tribunal, the Tribunal’s reasons cannot be said to be unfair or unlawful. It was open to the Tribunal to find that it was not satisfied that the applicant met the statutory criteria for the reasons given by the Tribunal.  There is no unfair assumption that has been identified that gives rise to any arguable case of jurisdictional error. 

3. No arguable case of jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, it is apparent that the Tribunal did make findings in relation to the applicant’s claim to fear harm by reason of his race, which clearly subsumed the applicant’s Chinese ethnicity. The adverse findings by the Tribunal were open for the reasons given by the Tribunal. 

2. No arguable case of jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, the applicant was invited to attend a hearing and failed to do so. On the face of the material before the Court, the Tribunal was correct in finding that the applicant was properly invited, in accordance with the statutory regime, to attend the hearing. 

2. No arguable case of jurisdictional error is made out by ground 3. 

3. Accordingly, the Court is not satisfied that there is an arguable case on the merits or relevant error by the Tribunal and that there would be any utility in reinstating the proceedings.

4. The Court finds that there would be no utility in reinstating the proceedings and that reinstatement is not warranted in the interests of the administration of justice in this case. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 31 August 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 13 November 2020