DFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 163
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 163
File number(s): CAG 60 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 15 March 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for reinstatement – whether there was a reasonable excuse for absence – whether there are reasonably arguable prospects of success – no reasonable excuse for absence – significant delay in seeking reinstatement – application without merit – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 65, 360, 425
Federal Circuit Court Rules 2001 (Cth) r 13.03C
Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510
Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
CQG15 v Minister for Immigration and Border Protection (2016) 235 FCR 496 at 518
Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929
Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 4 March 2022 Date of hearing: 4 March 2022 Place: Parramatta Solicitor for the Applicant: The applicant appeared in person. Solicitor for the First Respondent: Mr Morris of Clayton Utz ORDERS
CAG 60 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DFM19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
15 MARCH 2022
THE COURT ORDERS THAT:
1.The application for re-instatement is dismissed.
2.The Applicant to pay the First Respondent’s costs fixed in the amount of $3930.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a Chinese national. The applicant arrived in Australia on 28 April 2016 on a Tourist Class FA 600 visa. On 6 September 2016, the applicant applied for a Protection visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
On 9 February 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant a Protection visa. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 30 July 2019, the Tribunal affirmed the decision of the delegate not to grant the applicant a Protection visa. The applicant sought judicial review of the Tribunal’s decision.
On 4 November 2020, the matter was listed before the Court in Canberra. The applicant failed to appear. The matter was dismissed pursuant to then r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The applicant was ordered to pay the first respondent’s costs fixed in the amount of $5,602.00.
On 7 December 2021, the applicant filed an application seeking to have his matter reinstated. In an Affidavit accompanying the application, the applicant relevantly deposes:
I wasn’t able to attend the hearing schedule on 4 November 2020 due to the outbreak of the covid pandemic and the travel restrictions.
The applicant appeared before the Court unrepresented by telephone link. The applicant was assisted by an Interpreter.
Prior to the hearing commencing, the Court ensured that the applicant had received a copy of the relevant Court Books, along with the first respondent’s written submissions and that he had read them. The Court also ensured that the applicant had access to a pen and paper so that he could take notes should he so wish.
At the commencement of the hearing, the Court explained the matters that the Court would consider in a reinstatement application. The procedure for the conduct of the hearing was also explained to the applicant. Following the first respondent’s oral submissions, the applicant was asked if he wished to say anything further to the Court. The applicant replied “No”.
THE LAW
The relevant principles in relation to reinstatement are conveniently set out in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. Reinstatement is discretionary and 3 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 grant;
c) Whether the applicant has a reasonably arguable prospect of success on the substantive application… If not, then there is no purpose in reinstatement.
To the above factors, the Court would add in this case, the reasons for the delay between the application being dismissed and the application for reinstatement.
In relation to the applicant’s inability to attend the Court on 4 November 2020 the applicant told the Court that he came down with some flu like symptoms and decided not to attend the Court for the benefit of the Court staff and the Court. The applicant confirmed that he did not make any contact with the Court either prior to or immediately after the hearing date to explain his absence.
The applicant stated that the reason for the delay in seeking reinstatement was that he had no knowledge of “these things”.
The first respondent submitted that as at the date of the hearing the applicant’s address for service was a suburb of Canberra. No material has been provided to the Court as to how the pandemic prevented the applicant attending the Court in Canberra.
The Court is satisfied that the applicant was aware of the hearing date and location. No material exists on the Court’s record indicating that the applicant contacted the Court to indicate any issue with him attending. Had the applicant done so, arrangements could have been made for him to appear by telephone or video conference. The applicant simply failed to appear. The Court is not satisfied as to the excuse provided by the applicant. This mitigates against reinstatement.
In relation to the prejudice caused to the first respondent, the Court notes the proper concession made by the first respondent that there is no real prejudice to the first respondent. However, this is not the end of the matter. In Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 at [62] the following was said:
… there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible.
There is also a significant public interest in the finality of administrative decisions. In Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 at [15] the following was said:
An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
In the Court’s view, no adequate reason has been provided by the applicant as to the delay of 394 days in seeking reinstatement of his matter. The delay mitigates significantly against reinstatement.
In relation to the final matter, being the prospects of success of the substantive application, the Court is not satisfied the applicant, even on an impressionistic basis, has reasonable prospects of success for the reasons set out below.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out the relevant background and the law, at paragraphs 13 to 15 of the decision record, the Tribunal accepted that the applicant is a Chinese national, and that his identity is as claimed. The Tribunal noted that the applicant asserted he is married with one son, and that his wife, son and mother live in a two-storey townhouse in a named city in China.
In his application for a Protection visa, the applicant claimed that in 2013 a dispute arose between the applicant and “local village leaders” as to the compulsory acquisition of his house for the purposes of a redevelopment. The applicant did not believe that he was being offered sufficient compensation for his house.
In November 2013, village leaders attended this property and tried to force the applicant and his family out of their home. And affray resulted with the applicant being beaten up and having his leg broken. The applicant was left alone for a period of time, however, in May 2015 “similar things happen again” resulting in the applicant being detained by local police for three days. The applicant was subsequently released but was threatened with prosecution if they did not hand over the property.
At an interview with the Department on 31 January 2020, the Tribunal noted that the applicant was pressed for details of his house but he offered no more detail about the house than that it had white walls and black roof tiles. When asked why the applicant could not relocate within China he responded that he and his family had lived in the house for generations and the compensation offered for its compulsory acquisition would not allow them to purchase a new home. While the applicant was detained in 2015, he was informed the road leading to his house would shortly be torn up and that electricity and water would be shut off. As a result, the applicant moved to a friend’s house, close to where he worked about 30 km from his family home. No other incidents had occurred since his detention in 2015.
The applicant was asked how it was that he was able to depart China if he had an adverse profile with authorities, but he did not respond to the question. When pressed what he feared would happen if return to China, he initially suggested that he would be locked up, however, he changed his statement to being generally unhappy about his house, which had been his family’s for generations, being demolished.
At the Tribunal hearing, the applicant claimed that he tried to lodge a complaint about the low compensation with the relevant town government, however they were in league with village leaders and did nothing about it. The applicant claimed that he could not return to China because he would continue to be harassed by local authorities to secure the demolition of his house.
At paragraph 12 of the decision record, the Tribunal accepted that the applicant had received a notification that his property would be demolished in 2013 and that he suffered a broken leg in 2013. The Tribunal did not accept that the applicant had sustained a broken leg and other injuries as a result of the alleged physical altercation with the village officials regarding demolition. At paragraph 13 of the decision record, the Tribunal found that the applicant was not a credible witness on the basis that he failed to provide any evidence to corroborate his claims in relation to the manner in which his injuries were sustained and that he only provided the Tribunal with basic information in relation to his claims. The Tribunal concluded that the applicant’s evidence was superficial, lacked detail, and “did not have the ring of truth to it”.
At paragraph 15 of the decision record, the Tribunal found that even if the applicant’s claims were accepted, it was satisfied that the applicant would not be harassed on his return to China as claimed on the basis the applicant had resided in China for 15 months prior to departing Australia without incident and had no issue departing China. The applicant also confirmed that nothing was said to him or occurred at his place employment in relation to the property at any time including between 2013 and 2015.
At paragraph 29 of the decision record, the Tribunal noted when asked whether the property had now been demolished he said it had not and it was still there. When asked why the properties remain un-demolished, he replied “we refuse so they didn’t demolish ours”
At paragraph 35 of the decision record, the Tribunal found that officials would not harass the applicant upon his return to China because any such harassment that had previously occurred (which was not accepted by the Tribunal) ended in 2015. The Tribunal noted that the property remains undemolished and his mother continues to live in that property. Accordingly, the Tribunal was not satisfied that the applicant met the refugee criteria in
s 36(2)(a) of the Act, nor was he a person who Australia had protection obligations to as a result of complimentary protection requirements under s 36(2)(aa) of the Act.
GROUNDS OF JUDICIAL REVIEW
In the section of the application to this Court headed Grounds of Application, the following appears “Please see my affidavit”. In an Affidavit affirmed on 16 August 2019, the following is deposed:
Ground One
My migration agent has explained the AAT report dates 30th of July in Chinese to me.
I think maybe I was too nervous at the hearing on 12th of June, it has discrepancy with the fact I have experienced.
May I please have audio record to listen to make sure what I said at the hearing?
No additional material was provided by the applicant in support of the original application notwithstanding Court orders for the filing of written submissions.
THE FIRST RESPONDENT’S SUBMISSIONS ON MERIT
After setting out issues in relation to the applicant’s explanation for failing to appear and the delay in seeking reinstatement, the first respondent notes that neither the applicant’s original application nor Affidavit articulates or discloses any substantive ground for judicial review. Rather, the application appears to represent an invitation to this Court to engage in impermissible member merits review: (see; Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611 at [96]).
The Tribunal complied with s 360(1) of the Act in that it invited the applicant to appear before the Tribunal to give evidence and present arguments. It appears as though the applicant’s sole complaint is that he did not provide more detail because he was “too nervous” at the hearing. This offers nothing more than an ex post facto reason why his answers should have been believed. In essence, the applicant seeks that this Court supplant its own view of the applicant’s testimony for that reached by the Tribunal.
However, as the High Court made clear in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], findings of fact, where such findings are reasonably open on the evidence before it, particularly inasmuch as they relate to the credibility of a witness are a function for the Tribunal par excellence. Where such findings are not wholly beyond the scope of judicial review, it is submitted that some basis such as irrationality, illogicality or unreasonableness must be made out for the Court to intervene. It would not be sufficient for the Court to disagree with the Tribunal’s findings, even “emphatically” so: (see; CQG15 v Minister for Immigration and Border Protection (2016) 235 FCR 496 at [518]).
The first respondent contends that no basis has been identified by the applicant as to why the Court should intervene in the Tribunal’s assessment of the applicant’s credibility. The Tribunal considered the applicant’s evidence not be credible and did not accept it. The reasons for this included the vagueness of the applicant’s story and his inability to provide any further details which led the Tribunal to consider that he was “making up his evidence as he went along”. The first respondent notes that the applicant has not identified a particular conclusion of finding that he asserts was not open to the Tribunal the evidence.
While the Tribunal did not delve into great detail in rejecting each of the applicant’s claims, it was not required to do so: (see; Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323). The Tribunal, having rejected the applicant’s evidence, was not required to then make discreet findings about each one of the applicant’s claims.
Notably, the Tribunal went further explaining that, even if it accepted the applicant’s story, there was no basis to suspect, as the applicant claimed to fear, that officials will continue to harass him and his family. The last time the applicant claimed to have been harassed was in 2015. Since then, the applicant had left China, his house had remained undemolished and his mother continues to live in that house. Further, since the applicant had been allowed to leave China, it was reasonable to conclude that he did not have an adverse profile Chinese authorities generally.
Accordingly, it was submitted that even on an impressionistic basis, no jurisdictional error is made out.
CONSIDERATION OF THE MERITS OF THE APPLICATION
The Court notes that it is for the applicant to satisfy the Tribunal, being the relevant decision-maker, that he meets the criteria for being a refugee: (see; Abebe v The Commonwealth (1999) 197 CLR 510 at [187]). The Court agrees with the first respondent that in so far as the applicant’s grounds of judicial review take issue with the factual findings of the Tribunal, all that they do is to invite the Court to undertake impermissible merits review.
The Court has reviewed the findings of the Tribunal, particularly in relation to the credit of the applicant. The Court is not satisfied that these findings are irrational, illogical or otherwise subject to legal unreasonableness such that jurisdictional error is made out. The findings of the Tribunal in relation to the fact that the applicant was unable to leave China, that his house remains undemolished and his mother remains living in it and that nothing further happened in the 15 months prior to him leaving China, were all matters that the Tribunal was reasonably able to take into account in determining the credit of the applicant as regards his claims.
In relation to the issue of interpretation, there must be evidence before this Court that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence to the Tribunal or that errors made in the interpretation at the Tribunal hearing were material to the conclusion of the Tribunal and adverse to the applicant: (see; Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [16]-[17]). No such evidence has been provided.
Further, in relation to the claim that the applicant was “nervous” and this affected his capacity to accurately recall detail, the Court is not satisfied based on the bare assertion of the applicant that he was ‘nervous’, that this was sufficient to cause a denial of procedural fairness under
s 425 of the Act.
The matters that the Tribunal found against the applicant in relation to his credit were reasonably open to it based on the totality of the material before the Tribunal.
As the applicant was unrepresented, the Court also perused the Tribunal decision. No jurisdictional error that was not articulated by the applicant was apparent on the face of the decision.
CONCLUSION
The Court is not satisfied of the explanation given by the applicant for failing to appear on the last occasion. The Court is also not satisfied of the explanation given by the applicant for the delay in making an application for his matter to be reinstated. The delay of itself could constitute grounds for refusing the application.
While noting the proper concession by the first respondent as to prejudice, the Court is concerned as to the delay in this matter is one where the public interest in the finalisation of litigation should take some weight in any consideration to reinstate.
As to the final matter, being the merits of the original application, the Court is not satisfied that, even on an impressionistic basis, the grounds of judicial review have reasonable prospects of success.
Accordingly, in these circumstances, the Court is not satisfied it should exercise its discretion to reinstate the application. The application is dismissed with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 15 March 2022
2
9
0