DKN18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 967
•2 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DKN18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 967
File number: MLG 1906 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 2 October 2024 Catchwords: MIGRATION – protection visa, protection visa refused, judicial review application – Judicial Registrar dismissed applicant for non-attendance – application to reinstate judicial review application refused – application to review Registrar’s decision – whether reasonable excuse for the non-attendance – whether any prejudice to Minister – whether applicant has a reasonably arguable prospect of success on the substantive application – application for review of Registrar’s decision refusing reinstatement dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254, 256(1)
Migration Act 1958 (Cth) ss 5H(1), 5J(1)(a), 36, 36(2)(a), 36(2)(aa), 424, 424(3), 425, 425(A), 499
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)
Migration Regulations 1994 (Cth) sch 2
Cases cited: Allison v Murphy [2021] FCAFC 232
AZAFN v Minister for Immigration and Border Protection (No 2) [2016] FCA 305
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 11 September 2024 Date of hearing: 12 September 2024 Place: Melbourne Advocate for the Applicant: Self-represented litigant Advocate for the Respondents: Ms Rath Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1906 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DKN18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
2 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for a review of the Registrar’s decision refusing to reinstate the applicant’s judicial review application is dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $1,000.00.
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 Gostencnik
The applicant is a citizen of Malaysia who arrived in Australia on an Electronic Travel Authority (UD-601) visa on 20 May 2016: Court Book (CB) 44. On 15 August 2016, the applicant applied for a Protection (Class XA) (Subclass 866) visa: CB1-CB37. In that application, the applicant claimed to fear harm from a loan shark and gangsters as he had incurred a loan debt and could not afford to repay it because of the high interest and would not be able to seek protection from Malaysian authorities because of corruption in Malaysia: CB32-CB34. On 6 March 2017, a delegate of the (then) Minister for Home Affairs refused the visa application: CB40-CB56. The delegate concluded that the applicant would not face a real chance of persecution for one of the reasons mentioned in s 5J(1)(a) of the Migration Act 1958 (Cth) (Act); that he is not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or 36(2)(aa), and that the applicant could receive effective protection from the Royal Malaysia Police and judiciary in Malaysia against any threats from illegal moneylenders, as well as from any groups, gangs or anyone else in Malaysia.
The applicant subsequently applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision: CB57-CB58. The Tribunal acknowledged the review application on 25 March 2017: CB60-CB61, and on 28 September 2017, the Tribunal invited the applicant to attend a hearing scheduled for 23 November 2017 to give evidence and present arguments relating to the issues in his case: CB64-CB65. The invitation also requested the applicant to complete and return an enclosed 'Response to hearing invitation – MR Division' form to confirm his attendance at the hearing, and to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider.
The applicant attended the scheduled hearing before the Tribunal at which he gave evidence and presented arguments assisted by an interpreter in the Malay and English languages: CB66-CB69, CB75 at [12]. By its decision published on 6 June 2018, the Tribunal affirmed the decision not to grant the applicant a protection visa: CB73.
In its Statement of Decision and Reasons (Decision), the Tribunal set out at [1]-[10] a brief background and the relevant protection visa criteria by reference to ss 5H(1) and 36 of the Act, sch 2 to the Migration Regulations 1994 (Cth) and Ministerial Direction No.56 made under s 499 of the Act. At [11] the Tribunal reproduced the applicant’s claims as set out in his protection visa application, and at [13]-[35] the Tribunal summarised the applicant’s evidence given at the hearing: CB74-CB77.
As is evident from the Decision, the applicant abandoned his claim that he borrowed a large amount of money from a loan shark which he could not repay: CB76-CB77 at [32]-[33] and [36]. Instead, the applicant told the Tribunal that “the reason [he] wanted to stay [in Australia] was because of the economy [in Malaysia] and [he came] from a poor family that’s why [he came] here”: CB76 at [18]. The applicant borrowed money from a bank and his aunt and said that “if [he] can find a job [he] will stay, and if [he] cannot find a job [he] will go back”: CB77 at [37] and [25] respectively.
Unsurprisingly, the Tribunal at [36] of the Decision concluded that the applicant had abandoned his previous written claims, and accepted his oral evidence given at the hearing. At [38], the Tribunal noted the applicant’s admission that the claims about loan sharks and protection in general were fabricated to obtain a bridging visa to be able to work in Australia, and that he was only in Australia for economic reasons. At [39] the Tribunal records that it had ventilated matters to do with the applicant’s life and identity but that the applicant did not offer any information pertinent to a refugee protection or complementary protection claim.
Consequently, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act: CB 77 [40]-[41], and it affirmed the decision not to grant the applicant the visa: CB 78 [43].
By application made on 2 July 2018, the applicant applied to the (then) Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. The application contained an email address for service. Read fairly, the application alleges that the Tribunal did not make its decision according to law because the Tribunal:
(1)took into account irrelevant considerations;
(2)did not give the applicant a fair hearing; and
(3)did not take into account that the applicant’s family is poor and he cannot live in his country.
By email correspondence from the Court’s Migration Team on 12 October 2023, the applicant was notified that his matter had been listed for a callover hearing by telephone on 26 October 2023 at 2:00 pm. Separately, by email correspondence on 18 October 2023, the first respondent’s solicitor confirmed the applicant’s matter had been listed for a callover at the date and time earlier notified and advised the applicant that if he did not appear at the callover, the first respondent would seek for the matter to be dismissed for non-attendance with costs pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
The applicant did not attend the scheduled callover and on application by the first respondent, Registrar Carney dismissed the applicant’s judicial review application for non-appearance pursuant to r 13.06(1)(c) of the Rules. By application filed on 7 November 2023, the applicant sought reinstatement of his judicial review application which was subsequently listed for hearing on 7 December 2023 before the Registrar. The reinstatement application was dismissed, and the Registrar delivered reasons for so doing ex tempore.
By application filed on 27 December 2023, the applicant applied for a review of the Registrar’s decision. Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), relevantly provides that a party to proceedings in which a delegate, here the Registrar, has exercised any of the powers under s 254 of the FCFCOA Act, may apply to the Court for review of that exercise of power. Pursuant to r 21.04 of the Rules, a review of an exercise of power by a Registrar proceeds by way of a hearing de novo. Accordingly, the Court is not concerned with considering the correctness of the Registrar’s decision or redressing any perceived error in that decision. Instead, the Court hears the case again unaffected by what has gone before: see Allison v Murphy [2021] FCAFC 232 at [11].
As Ryan J explained in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7], where 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 non-exhaustive factors, and whether, on balance, they tend for or against the reinstatement, namely:
(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; and
(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 in original).
The applicant explained that he did not become aware of the callover hearing until the date for attendance had passed. He said he does not regularly check his emails and so he missed the notice of listing which had been sent to him. Whilst some allowance may be made for the fact that the applicant is unrepresented and over five years had passed between the date the applicant applied for judicial review and the notice to attend the callover; nevertheless, the applicant specified that service may be affected by email, and he should reasonably be expected to take responsibility for monitoring the progress of his matter. This would in the circumstances include monitoring his emails to check for correspondence from the Court or the first respondent.
There was a two-week period between the email notice of the callover and the date scheduled for the callover. Accordingly, I am not persuaded that the applicant has provided a reasonable excuse for his nonattendance and so this consideration weighs against reinstatement of the applicant’s judicial review application.
The first respondent properly accepts that there would be no prejudice caused to the Minister by reinstatement, but submits, and I accept, that the absence of prejudice cannot, of itself, justify the exercise of the discretion sought by the applicant: see AZAFN v Minister for Immigration and Border Protection (No 2) [2016] FCA 305 at [25].
Turning then to consider whether the applicant has a reasonably arguable prospect or reasonable chance of success on the judicial review application. By his first ground contained in that application, the applicant contends that the Tribunal took into account irrelevant considerations. This ground is not particularised. For present purposes, a matter will be an irrelevant consideration if the decision maker is, expressly or by implication discerned from the subject matter, scope and purpose of the relevant enactment, not permitted to take the matter into account: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40. At the hearing before me, the applicant was unable to articulate any irrelevant matter that the Tribunal erroneously took into account. On reviewing the Decision, the Tribunal’s conclusion turned on the applicant’s oral evidence given during the hearing which the Tribunal accepted. There is no evident irrelevant matter which the Tribunal appears to have taken into account. On the material to hand, this ground has no reasonably arguable prospect of succeeding.
By his second ground, the applicant contends the Tribunal did not give the applicant a fair hearing. This ground is also unparticularised. Again, at the hearing before me, the applicant was not able to explain the basis on which he maintained the Tribunal had not afforded him a fair hearing. As earlier noted, by its invitation correspondence dated 28 September 2017, the Tribunal invited the applicant to attend a hearing on 23 November 2017 in accordance with ss 425 and 425A of the Act to give evidence and advance arguments in relation to his matter, and to provide any additional or new information he would like the Tribunal to consider. The applicant attended the hearing with the assistance of an interpreter at which he gave evidence. The applicant was on notice from the questions posed by the Tribunal during the hearing that the credibility of his earlier written claims and the evidence he gave during the hearing would be the determinative issue on review.
Moreover, it is not apparent nor alleged that there was “information” that was required to be put to the applicant in accordance with s 424A of the Act. The information discussed earlier as set out in the applicant’s protection visa application and that which the applicant gave during oral evidence at the Tribunal hearing, clearly fell within the exceptions in s 424A(3). On the materials, the applicant appears to have been given a fair hearing by the Tribunal and I do not consider this ground has any reasonably arguable prospect of succeeding.
The applicant’s third ground appears to contend that the Tribunal did not consider his claim to fear (significant) harm if he were returned to Malaysia because of an inability to subsist. It is not apparent on the material that the applicant made such a claim nor gave any evidence to that effect. The applicant’s oral evidence was that “the reason [he] wanted to stay [in Australia] was because of the economy [in Malaysia] and [he came] from a poor family that's why [he came] here”: CB76 at [18]. The Decision also records that before coming to Australia, the applicant was employed in Malaysia earning a monthly income: CB76 at [28], and that although the Tribunal also discussed the complementary protection provisions with the applicant, he did not advance any substantial grounds for believing that there is a real chance the applicant will suffer significant harm if returned to another country: CB77 at [39]. In addition, the applicant told the Tribunal that he bought a return ticket to Malaysia when he travelled to Australia because he was “just looking for a job” and “if [he could] find a job [he] will stay, and if [he] cannot find a job [he] will go back": CB76 at [25]. As already noted, the Tribunal concluded that the applicant’s claims to fear harm were fabricated and he was in Australia to work for economic reasons.
The Tribunal did not consider any claim the applicant feared significant harm if he were returned to Malaysia on account of an inability to subsist because it is not evident such a claim was made or advanced. Moreover, such a claim is inconsistent with the applicant’s evidence about his work history in Malaysia and his intention to return to Malaysia if he cannot obtain work in Australia. For these reasons I do not consider this ground has any reasonably arguable prospect of succeeding.
As the applicant was unrepresented before the Court, I have reviewed the Tribunal's Decision and the material in the Court Book filed by the first respondent with an eye to identifying jurisdictional error beyond dealing merely with the applicant’s proposed review grounds. However, I have not identified any other reasonably arguable case of jurisdictional error.
The absence of a reasonably arguable prospect or chance of success of the applicant’s judicial review application weighs against the reinstatement of the applicant’s judicial review application.
During the reinstatement hearing, the applicant said there was a further basis he could not return to Malaysia. The applicant said he had recently married and that his wife converted from Muslim to Christianity, which according to the applicant, is not permitted in Malaysia. Accordingly, he and his wife cannot return. It is not necessary to determine the veracity of this claim. It is sufficient to note that the claim was not advanced before the Tribunal and concerns events post-dating the Tribunal’s decision the subject of the judicial review application. The matters raised do not disclose jurisdictional error.
The weight of matters discussed above is clearly against the reinstatement of the applicant’s judicial review application, and as there are no other matters relevant to determining whether the applicant’s judicial review application should be reinstated, it is appropriate for the applicant’s reinstatement application to be dismissed.
The first respondent sought an order for costs in the sum of $1,000.00 if the applicant was unsuccessful. The applicant did not advance any cogent reason why such an order in the sum sought ought not be made. Given the history of this matter I consider the sum sought is appropriate. The applicant is to pay the first respondent’s costs of this application fixed in the sum of $1,000.00. An order amending the name of the first respondent to “Minister for Immigration and Multicultural Affairs” will also be made.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 2 October 2024
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