Dhi18 v Minister for Home Affairs

[2021] FCCA 1379

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHI18 v Minister for Home Affairs [2021] FCCA 1379

File number(s):

SYG 1759 of 2018

Judgment of:

JUDGE EGAN

Date of judgment:

8 June 2021

Catchwords:

MIGRATION – Application for re-instatement – absence of filed Court Book – matter adjourned for filing of Court Book so as to allow the Court to fairly consider all of the submissions made on behalf of the applicant – orders accordingly.  

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(c).

Cases cited:

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

FBS18 v Minister for Home Affairs [2019] FCAFC 196.

BYF15 v Minister for Immigration and Border Protection [2016] FCA 774.

Number of paragraphs:

9

Date of last submission/s:

8 June 2021

Date of hearing:

8 June 2021

Place:

Brisbane

Counsel for the Applicant:

Mr Foster

Solicitor for the Applicant:

Mr Sinnarajah

Solicitor for the First Respondent:

Ms Given of HWL Ebsworth

Second Respondent

Submitting appearance save as to costs.

Table of Corrections
21 June 2021	In paragraph 3 a reference to the applicant’s name has been corrected to show “the applicant”.

ORDERS

SYG 1759 of 2018

BETWEEN:

DHI18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	10 JUNE 2021

IT IS ORDERED THAT:

1.The Applicant’s Application in a Case filed on 31 March 2021 be adjourned for hearing to 9:45am on 23 August 2021.

2.By 4:00pm on 19 July 2021, the First Respondent shall deliver to Judge’s Chambers in physical form a bundle of relevant documents (Court Book), and file and serve such bundle in an electronic form. For that purpose, the document shall: 

a. be in portable document format (PDF);

b. be capable of being searchable for specified text;

c. have an index and shall be paginated;

d. have each entry in the index bookmarked; and

e. be set so that when opened:

i. it shall display at 100% zoom; and

ii. the bookmarks menu shall be displayed.

3.The Applicant is to file and serve a consolidated set of written submissions in support of the Application in a Case filed on 31 March 2021, on or before 4:00pm on 2 August 2021.

4.The First Respondent shall file and serve a consolidated set of written submissions in response on or before 4:00pm on 16 August 2021.

5.Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.

6.The costs of and incidental to the adjournment be reserved.

EX-TEMPORE REASONS FOR JUDGMENT

JUDGE EGAN:

1. For the purpose of the Court’s consideration of the application for reinstatement, the Court is of the view that it is important that all arguable claims, which are to be the subject of submissions to the Court, should be able to be understood.

2. Where leave was sought by the applicant to rely upon a draft amended application, the Court grants such application. Should the Court not have granted the application, it would be proceeding where not all of the claims reasonably able to be made on behalf of the applicant were before the Court. 

3. To deny the applicant the opportunity of making argument, in such circumstances, could lead to an unjust and unfair result.  Accordingly, for those reasons, the Court grants leave to the applicant to rely upon the terms of the draft amended application which is annexure A to the affidavit of the applicant, filed on 31 March 2021.

4. The application before the Court was, as conceded by Ms Given on behalf of the first respondent, an application for re-instatement.  The test for the granting of such an application was set out by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] as follows: [1]

   [1]           See also FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] – [52] per Flick, Robertson and

   Lee JJ; BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [29] – [30] per

   Perry J.

   “[7] In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement.  Those factors are:

   (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.  As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

   The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement

   (emphasis added)”

5. On 16 July 2018, an order was made by Registrar Cho which dismissed the proceeding pursuant to the provisions of rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the non-appearance of the applicant. I have had regard to the submissions made on behalf of the first respondent to the effect that the applicant has not pursued this application in a diligent manner. The Court accepts that to be the case.

6. However, the visa application made by the applicant on 10 May 2017 was an application for a Safe Haven Enterprise visa.  The serious claims made by the applicant, as recorded by the Immigration Assessment Authority (‘the Authority’) at [5] of its reasons, were as follows:

   ·     “He is a single Tamil Hindu male who was born in Colombo on [date omitted]. He lived most of his life in [name omitted] in the Eastern Province of Sri Lanka. He makes no claims about his religion.

   ·     During the war he had problems in [name omitted] with harassment and exploitation.

   ·     He was regularly stopped at security checkpoints by the authorities and asked to pay bribes. He was detained at checkpoints two or three times because he forgot his National Identity Card (NIC).

   ·     The Sri Lankan Army (SLA) would round the applicant up with other Tamil people who lived near the camp and require them to do work around the camp.

   ·     During the war his father sometimes gave food and diesel to the Liberation Tigers of Tamil Eelam (LTTE).

   ·     At the beginning of 2011 he became close friends with two young men, D and S, who were associated with the LTTE. He was not aware that they had been involved with the LTTE.

   ·     In November 2011, D was taken by the CID (Criminal Investigation Department) officers, while they were talking at the side of the road. The same day he was released however he did not disclose the reason why he was detained.

   ·     After this incident, the police visited his home and questioned him about his connections with D and S.

   ·     He did not spend time with D and S in the following three to four months. In March or April 2012 he saw them by the side of the road and talked with them again. Two days later D and S were both taken by the CID.

   ·     Two days after they had been taken, S railed him to 'come to the road'. When he got to the meeting place, two army officers stopped him, blindfolded him and took him to their camp. He was locked in a dark room and beaten. The army officers interrogated him about his personal links with L TTE and his connections with D and S who were L TTE members. He was questioned as to whether he was also with the LTTE. He told them he did not know they were L TTE. He was kept overnight and the next day the applicant was placed in the same cell as D and S. They told him they were L TTE. He was released the next day from custody but does not know why.

   ·     D and S were released from detention soon after.

   ·     Around June 2012, S told him that D had disappeared.

   ·     Two days later, unknown men in plain clothes came to his home. He was scared and ran away and was in hiding for two days. The men continued to visit his parents' home.

   ·     His parents advised him that it was no longer safe to stay in [name omitted] and suggested he go to [name omitted], 20 to 30 kilometres from [name omitted]. He registered and worked in [name omitted] with his father's business acquaintance, however within ten days the police were looking for him in [name omitted] so he went into hiding in the jungle.

   ·     His father arranged for him to leave Sri Lanka about ten days later.

   ·     After he left Sri Lanka the authorities came to his parents' house, multiple times in one month, and questioned them about his whereabouts. His parents told them that they did not know where he was.

   ·     If he is returned to Sri Lanka as a failed asylum seeker, he will be subject to serious harm including torture, significant physical harassment or even death at the hands of the CID, SLA or Sri Lankan Government.”

   [dates and names of places omitted]

7. Should it be determined, ultimately, that there was jurisdictional error on the part of the Authority, the usual orders would be that the decision of the Authority, in confirming the decision of the delegate to refuse the grant of the visa, would be quashed, and that thereafter, the Authority would be required to re-consider the matter according to law.

8. The consequences of the applicant returning to his home country, should his claims be accepted, are, on one view, dire.  The Court finds that it is not today in a position to assess whether there are reasonable prospects of success of the application for review of the decision of the Authority in the absence of a proper Court Book being prepared so that the Court can fairly assess the applicant’s claims by reference to all relevant documentation which was before the Authority.  The Court well appreciates that procedural fairness is a two-way street.  It also well appreciates that matters should not be summarily, or arbitrarily, decided on what might, on its face, appear to be a matter lacking in merit.

9. It was submitted on behalf of the first respondent that the two (2) grounds in the Amended Application for Review merely seek a merits review of the decision of the Authority.  As stated earlier, in the absence of the material before the Authority being able to be the subject of consideration when included in a Court Book, this Court does not consider that it is able to accept, carte blanche, the submissions made by Ms Given in that regard. In those circumstances, the Court orders that a court book be prepared and that it be prepared in hard-copy as well as filed electronically, such that the hard-copy can be delivered to chambers prior to the adjourned hearing of the application for reinstatement.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       18 June 2021