Doy19 v Minister for Immigration

[2020] FCCA 246

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOY19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 246

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application to set aside orders made in the absence of the applicant – whether applicant has given adequate explanation for non-appearance – whether application would have merits if the orders were set aside – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c),16.05(2)(a), Schedule 1, Part 3

Migration Act 1958 (Cth), ss. 476, 477(1), 477(2)

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: DOY19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2424 of 2019

Judgment of: Judge Manousaridis

Hearing date: 30 January 2020

Date of Last Submission: 30 January 2020

Delivered at: Sydney

Delivered on: 14 February 2020

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent: Ms K Evans of Sparke Helmore Lawyers

ORDERS

1. The application in a case filed on 10 December 2019 seeking to set aside the orders made on 10 October 2019 dismissing the application filed on 18 September 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2424 of 2019

DOY19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before me is an application in a case filed by the applicant on 10 December 2019 seeking, in effect, an order that the orders made by a Registrar of this Court on 10 October 2019 dismissing the application be set aside. The Registrar dismissed the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). I have assumed that the applicant, who is not legally represented, relies on r.16.05(2)(a) of the FCC Rules.

2. The application the Registrar dismissed was one for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) that the 35 day period provided for by s.477(1) of the Act for applying for a remedy under s.476 of the Act in relation to a decision of the second respondent (Tribunal) be extended. The Tribunal’s decision in relation to which a remedy under s.476 of the Act is intended to be sought, if an order under s.477(2) is made, is a decision made on 14 August 2018 affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a protection visa. The application for remedies in relation to the Tribunal’s decision and for extension of time was filed with this Court on 18 September 2019, almost one year after the 35 day period prescribed by s.477(1) of the Act for making an application in relation to the Tribunal’s decision had expired.

Background

1. The applicant is a citizen of Mongolia. She arrived in Australia on 9 July 2014 holding a Specialised Skill visa. On 2 October 2014 she applied for a protection visa. A delegate of the Minister refused the application on 20 August 2015. The applicant then applied to the Tribunal for review of the delegate’s decision; and she appeared before the Tribunal on 3 August 2018 to give evidence and present arguments.

2. The applicant claimed she feared persecution because she was in an abusive relationship with her husband. In her application for a protection visa, the applicant claimed that in 2004 her husband had beaten her and stabbed her, resulting in the applicant’s being admitted to hospital where she remained for 6 months. Because she feared for her safety, in 2006 the applicant registered herself as a candidate to work in South Korea, and in 2008 she went to South Korea where she worked. In 2010 the applicant’s husband came to South Korea and again attacked the applicant. When the applicant’s husband returned to Mongolia he frequently went to the applicant’s parents’ house and terrorised the applicant’s parents and her daughter. When the applicant returned to Mongolia in September 2014 she discovered her husband and his parents were looking for her. That made her think about leaving Mongolia and she consequently came to Australia.

3. The Tribunal did not accept the central elements of the applicant’s claims because it had a number of credibility concerns which, when considered cumulatively, caused the Tribunal not to be satisfied “as to key substantive claims by the applicant or that she has been a truthful or credible witness”.[1] The credibility concerns the Tribunal identified included the applicant’s having given inconsistent evidence about the actions she claimed authorities had taken in response to her husband’s stabbing the applicant; the applicant did not at the hearing before the Tribunal mention that after she was stabbed she had instigated two court proceedings against her husband in 2006 for domestic violence, yet this was a claim she had made in her written claims; the applicant in her written claims did not mention the stabbing incident which, on the applicant’s claims, was the catalyst to her separating from her husband; the applicant made inconsistent claims about the period for which she was hospitalised after the claimed stabbing in 2004; the applicant did not give consistent evidence about her husband’s visits to South Korea; and the applicant did not provide any corroborating documents such as hospital records, or court documents relating to her claimed court proceedings in Mongolia.

   [1] Reasons for decision, [44]

4. As I have already said, the Tribunal made its decision affirming the delegate’s decision on 14 August 2018, but the applicant did not make an application to this Court in relation to that decision until 18 September 2019. The matter was listed for a first court date on 10 October 2019. The applicant did not appear on that day, and the Registrar made orders including an order that the application be dismissed.

5. After the Registrar made his orders, the Minister’s lawyer sent by email to the applicant’s email address two letters addressed to the applicant.[2] Both letters stated that on 10 October 2019 the applicant’s application was dismissed because the applicant failed to appear, and that the applicant was ordered to pay the Minister’s costs fixed in the sum of $1,495. One of the letters contained the following statements:

   As you were not in attendance at the directions hearing listed today, 10 October 2019, we were ordered to notify you of the effect of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth), a copy of which is enclosed for your reference.

   Rule 16.05 provides that a party may apply to the Court to vary or set aside an order where the order was made in the absence of the party.

   If you consider if [sic] appropriate to make an application under rule 16.05, you should do so immediately by filing and serving a notice of motion and supporting affidavit explaining your reasons for your absence and identifying an arguable case that would justify setting aside the orders for dismissal.

   [2] I marked these letters “Exhibit A”

6. The email also attached a copy of the Registrar’s orders made on 10 October 2019.

Course of hearing of application to set aside

1. At the hearing of the application in a case I explained to the applicant, who is not legally represented, the purpose of the hearing, and the procedure that would apply. I also explained to the applicant the matters she needed to address in support of her application to set aside the Registrar’s orders. I informed the applicant she needed to inform me of the reasons why she did not attend the hearing before the Registrar, and also to inform me of the reasons she says that, if the Registrar’s orders are set aside, she would have a reasonably arguable case that she would succeed in obtaining an order under s.477(2) of the Act. I then explained the matters of which a Court must be satisfied before it could make an order under s.477(2) of the Act.

2. After identifying the documents the applicant had filed I invited the applicant to make submissions. I guided the applicant by asking questions relevant to the time she had taken to apply to set aside the Registrar’s orders, and the time she had taken to file her application to the Court seeking remedies in relation to the Tribunal’s decision. I then asked the applicant to state why she believed the Court should set aside the Tribunal’s decision, after which I took the applicant to the documents she had filed containing grounds for setting aside the Tribunal’s decision, and asked her questions about the grounds. In answering my questions, the applicant made a number of assertions of fact. After the applicant completed her submissions, I informed Ms Evans, who appeared for the Minister, that, subject to any objection by Ms Evans, I proposed to deal with the assertions of fact the applicant made as if they had been made under oath. Ms Evans said that, as a matter of fairness, she wanted to put a number of matters to the applicant. The applicant was then sworn in and she was cross-examined. After the cross-examination, and before she retired from the witness box, I informed the applicant that I proposed to proceed as if the applicant had made the statement from the bar table on oath. Neither the applicant nor Ms Evans objected to my so proceeding.

3. I should also note that in the course of my asking the applicant questions about the grounds contained in the affidavit the applicant filed in support of the application in a case, the applicant said she needed an adjournment so that she could prepare better. The applicant applied for an adjournment even though, at the beginning of the hearing, the applicant said she was ready to proceed. The applicant said she was not prepared because she did not know she would be questioned “in each and every details [sic]”. I asked the applicant what she proposed to do if I were to grant her further time. The applicant said she would first of all “fix my visa issue that I needed to attend quickly [sic]”, and, second, “I will be more prepared and will scan through and check through all the stuff that I need to know the details [sic]”. I asked the applicant from whom she expected to obtain help, and she said from her friend, who I understood was a gentlemen sitting in the court room. The applicant said the gentlemen was not a lawyer, but he helped the applicant prepare the affidavit.

4. I informed the applicant I was not going to grant her the adjournment she sought, and that I would give reasons in the judgment I proposed to deliver in relation to her application in a case. My reasons for not granting the adjournment are that the applicant had sufficient time to acquaint herself with the contents of the grounds contained in the affidavit which she made and which she filed on 10 December 2019. Further, there would be no utility in granting the applicant further time. The only assistance the applicant said she would obtain was that from a person who was not legally qualified who had helped the applicant prepare the affidavit on which the applicant relied.

Principles for setting aside orders made in absence of party

1. The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were considered by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[3]

   In circumstances 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 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.

   [3] [2010] FCA 530 at [7] (cases cited omitted)

2. I therefore turn to the first matter I need to consider, and that is the reasons for the applicant not appearing at the hearing before the Registrar on 10 October 2019.

Reasons for non-appearance before Registrar and delay

1. Although the applicant filed an affidavit in support of her application in a case to set aside the Registrar’s orders, the applicant said nothing in that affidavit about why she did not appear at the hearing before the Court on 10 October 2019. In answer to my questions, the applicant said that on that day she went to the Court at 184 Phillip Street, Sydney, she went to level 8 where she was directed to go to level 10, but when she went there she could not find an interpreter.

2. I have doubts about the accuracy of this account, largely because of what the applicant said about why she did not file the application in a case until two months after the Registrar made the orders, and about why she did not file the application with this Court in relation to the Tribunal’s decision until almost one year after the time by which she was required to file such application. Those statements reveal that the matter that seems to have motivated the applicant’s decisions was her desire to secure a bridging visa to regularise her presence in Australia. In any event, my doubts do not lead me not to accept the applicant’s statements, and I will assume that, as she stated, the applicant did turn up to Court on 10 October 2019, and, for reasons that are not clear, she was unable to find the court room in which her matter had been listed.

3. I also asked the applicant why she waited until 10 December 2019 before she filed an application in a case to set aside the Registrar’s orders. The applicant initially said she did not receive a communication of the Registrar’s orders; and that she became aware of the orders when it came to her attention that her visa had expired. The applicant said that occurred at around the time she filed the application in a case. After Ms Evans brought to my attention the two letters the Minister’s lawyers sent to the applicant by email on 10 October 2019 informing the applicant of the orders,[4] the applicant checked her phone and acknowledged that she received the email from the Minister’s lawyers attaching the two letters. The applicant then said she did not understand what had been sent to her. In any event, the explanation the applicant gave for filing the application in a case at the time she did is that by that time she understood that by filing the application in a case she would be granted a bridging visa.

   [4] Exhibit A

4. Although I assume the applicant’s statement that she attended the Court building on 10 October 2019 is correct, the applicant did not identify what it was that prevented her from locating the court room in which her matter was called. To that extent, the applicant’s explanation for not attending is inadequate. In addition, the applicant’s explanation for not applying to set aside the Registrar’s orders before 10 December 2019 is also inadequate. Even if I assume the applicant could not understand the email and letters the Minister’s lawyers sent to her on 10 October 2019, the applicant appears to have taken no steps to obtain such assistance as may have been available to her to have the documents explained to her. Further, it appears that the driving force behind the applicant’s decision-making was her desire to have a bridging visa issued, not her desire to prosecute the proceeding she had filed in September 2019.

Reasonable prospects of obtaining order under s.477(2) of Act?

1. Under s.477(2) of the Act the Court may order the extension of the 35 day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[5]

   [5] [2013] FCA 1284, [47]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)Whether there is any prejudice to the Minister;

   (c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

3. His Honour further said these factors “cannot be said to exhaust all potentially relevant factors in every case”, because they “are simply sensible guidelines developed by the courts which have utility in most cases”.[6]

   [6] [2013] FCA 1284, [48]

4. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[7] Further:[8]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [7] [2015] FCA 1391, [63] (cases cited omitted)

   [8] [2015] FCA 1391, [62] (cases cited omitted)

5. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[9] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[10]

   [9] [2015] FCA 1391, [63] (cases cited omitted)

   [10] [2015] FCA 1391, [62] (cases cited omitted)

Length of and explanation for delay

1. The applicant stated she first became aware of the Authority’s decision in September 2019 when she became aware she did not hold a valid visa. The applicant stated she had not before that time been provided with a copy of the Tribunal’s decision; she obtained a copy of the Tribunal’s reasons for decision from her agent after she had become aware she no longer held a valid visa. Although the applicant accepted she appeared before the Tribunal on 3 August 2018 to give evidence and make submissions, she did not make any inquiry of her agent or of the Tribunal about the progress of her application for review until she became aware in September 2019 of the Tribunal’s decision.

2. I find implausible the applicant’s statement that she made no inquiry about progress of her application of review before the Tribunal until September 2019 when, so the applicant stated, she first became aware of the Tribunal’s decision. I also find it implausible that her agent would not have informed the applicant of the Tribunal’s decision. By letter dated 15 August 2018 sent by email, the Tribunal provided to the applicant’s representative, a lawyer, a copy of the Tribunal’s decision.[11] It is implausible that the representative did not provide a copy of the decision to the applicant at around the time the representative received it. In any event, even if I were to accept as true the applicant’s statement, the effect of it is that the applicant did nothing in relation to preserving her rights in relation to her claims for protection for thirteen months after she appeared before the Tribunal; and the applicant’s doing nothing is not an adequate explanation for her delay in making her application to this Court for remedies in relation to the Tribunal’s decision. It is not even an explanation.

   [11] Exhibit C

1. In her application the applicant identifies two other reasons for seeking an extension of time. One is she could not find a lawyer. The other is she did not have sufficient time to “raise money for court”. None of these matters constitute an adequate explanation for delay. In any event, assuming what the applicant said to be is correct, these matters do not appear to have played any role in the applicant’s delay. The applicant stated to me she first became aware of the Tribunal’s decision in September 2019. Having become so aware, the applicant’s not having access to a lawyer or to money with which to pay a lawyer did not prevent her from filing an application on 18 September 2019.

2. For these reasons, I find that if I were to set aside the Registrar’s orders, the applicant would not have reasonable prospects of establishing adequate reasons for the near one year delay in applying to this Court for remedies in relation to the Tribunal’s decision.

Proposed merits

1. The applicant relies on the grounds set out in the application, and in the affidavit the applicant filed in support of her application in a case (Affidavit). The grounds stated in the application are as follows:

   1.The Applicant is the subject of a decision given by the First Respondent on 20 August 2015 in which the Applicant was refused an application for a Protection (subclass XA) visa.

   2.Following that refusal decision, the Applicant subsequently lodged an application for review with the Second Respondent in relation to that decision (having case number: 1513087).

   3.On 3 August 2018, the Applicant attended a hearing before the Second Respondent and gave evidence as to matters in support of her application for review.

   4.On 14 August 2018, the Second Respondent gave its decision in which the First Respondent’s decision given on 20 August 2015 was affirmed.

   5.The Applicant contends that an appeal to the Court ought be allowed for the following reasons:

   a) The Applicant’s evidence given in support of her claims for the said visa ought to have been accepted or given greater weight by the Respondents and as such the requirements for the said visa, pursuant to s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth), appear to have been satisfied on the evidence given;

   b)Alternatively to 5(b) above, the Respondents should have allowed or permitted a further time period in which any further evidence or supporting documentation could be obtained and to be considered by the Respondents in arriving at their decisions.

   6. Because of paragraph 5 above, the Applicant seeks that the decision of the Second Respondent given on 14 August 2018 be quashed and remitted back to them for re-determination according to law.

2. It will be apparent that, although the grounds of the application contain six paragraphs, they only state two grounds, these being the grounds stated in paragraph 5.

3. The grounds set out in the Affidavit are as follows (errors in original):

   1.I am the applicant in this matter.

   2.I have been declined by AAT, which I am of the view that decision is erroneous and insufficient AAT and DIBP have failed to consider my case in accordance with Natural Justice and Procedural Fairness

   3.AAT has failed to serve the documents in proper manner

   4.AAT and DIBP have failed to do correspondences incorrectly and insufficiently

   5.THE TRIBUNAL DENIED THE APPLICANT THE RIGHT TO REPRESENTATION TO ASSIST THE APPLICANT IN PRESENTING MY CASE PROPERLY AND ADEQUATELY

   6.The applicant was not aware of the way in which the Migration Review Tribunal processes applications nor was she in a position to properly present the facts on which she relied

   7.The Tribunal failed to take into consideration some important procedural errors made by the department in assessing the applicant application

   8.In this respect, the Tribunal should have accepted the Applicant case and allowed the Applicant with such representation in order to properly presented the Applicant’s case but hence was denied by the Tribunal.

   9. THE TRIBUNAL DENIED THE APPLICANT PROCEDURAL FAIRNESS AND NATURAL JUSTICE IN NOT GIVING ME THE OPPORTUNITY TO PROPERLY CONSIDER MY LEGAL POSITION, GIVEN MY LIMITATION IN THE LEGAL SYSTEM

   10.THE TRIBUNAL FAILED TO DETERMINE THE APPLICANT’S APPLICATION FOR REVIEW ACCORDING TO THE LAW, IN TAKING A VIEW OF THE MIGRATION ACT AND REGULATIONS. THAT WAS UNNECESSARILY LIMITED AND CONSTRUCTED AND WHICH FITTED THE TRIBUNAL MEMBER’S PERSONAL VIEW RATHER THAN A COMPREHENSIVE VIEW OF THE RELEVANT LAW

   11.The Tribunal Member therefore regarded the Applicant’s as being no different to any other Applicant who lodged an invalid application and this constituted a failure to afford the Applicant procedural fairness

   12.The Tribunal Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant’s actual circumstances

   13.Had the Tribunal given proper consideration to the facts, instead on merely noting and dismissing it without proper consideration, the Tribunal should have come to a different view of the Applicant’s case for review. I applied for a Temporary Business Entry (Class

   14.I believe that I would be eligible to be granted for a Temporary Business Entry (Class UC) visa application.

   15.I respectfully submit that AAT has failed in considering natural justice and procedural fairness, and further has not given thorough consideration of my latest Business Nomination Approval.

   16.UNABLE TO ARRANGE SOLICITOR’S FEE

   17.HEARING/MENTIONING DATE WAS NOT IN LAWYER’S TIME

4. I led the applicant into this part of her submissions by asking her what she considered was wrong with the Tribunal’s decision. The applicant said there were two things. The first is that the Tribunal did not consider compelling compassionate circumstances, those circumstances being her having a real fear of returning to Mongolia. The applicant said the Tribunal did not examine her case properly. In answer to my question “why?” the applicant said she was not satisfied with the decision the Tribunal made. This does not disclose an arguable case of jurisdictional error by the Tribunal. It goes no further than expressing disagreement with the Tribunal’s decision. The second thing was the applicant’s medical condition. The applicant said she has hepatitis C and a dysfunctional liver. The applicant, however, informed me that she did not inform the Tribunal of her medical condition because she was diagnosed with these conditions after she appeared before the Tribunal. The applicant’s medical condition is incapable of raising an arguable case of jurisdictional error.

5. I then asked the interpreter to interpret each of paragraphs (a) and (b) of paragraph 5 of the grounds of application and I asked the applicant questions about each of those grounds.

   a)In relation to the ground stated in paragraph 5(a), the applicant said the evidence she provided to the Tribunal was sufficient to support her case; and she provided all of the evidence she could collect by that time. Neither the ground as stated in paragraph 5(a) nor the statements the applicant gave in relation to that ground, would disclose an arguable case of jurisdictional error. They go no further than submitting the Tribunal ought to have accepted the applicant’s claims.

   b)In relation to ground 5(b), I asked the applicant whether she asked the Tribunal for further time by which to put on further evidence. The applicant said she did not. That by itself means this ground would disclose no reasonably arguable case of jurisdictional error. In any event, it appears the Tribunal did provide the applicant an opportunity to provide further information. That is apparent from paragraph 26 of the Tribunal’s reasons for decision:

   In response to this inconsistency in the hearing, the applicant indicated that her written claims were true. She indicated that she would provide a fuller response in writing. Whilst the applicant’s representative provided a written submission following the hearing, which is detailed further below, the representative indicated that the client was not able to provide them with any further instructions or material directly to support her application.

6. I then took the applicant to the grounds stated in the Affidavit. I asked the interpreter to interpret to the applicant paragraph 2, and I then asked the applicant questions about it. I followed this course until paragraph 7 when the applicant said she would be unable to answer any questions in relation to the balance of the paragraphs because she had not sufficiently prepared to be in a position to answer them. It was at this stage the applicant applied for an adjournment to give her time to prepare. As I have already noted, I refused the application for an adjournment.

7. I now consider each of the grounds stated in the applicant’s Affidavit.

8. Paragraph 2 of the Affidavit, as framed, does not identify the matters on which the applicant relies for claiming the Tribunal’s decision is erroneous and insufficient; nor does it identify the manner in which the Tribunal failed to consider the applicant’s case, and the matters the Tribunal did not consider the applicant’s case in accordance with natural justice and procedural fairness. The paragraph, therefore, would not disclose an arguable case of jurisdictional error.

9. The applicant made submissions in relation to paragraph 2. The applicant said she believed the Tribunal did not go through her case in detail, and the Tribunal did not check her case properly. I asked the applicant whether she could give an example where that occurred. The applicant said the Tribunal did not ask for physical evidence. The applicant, however, said she did not offer any such evidence because she did not know she had to provide it. This would not raise an arguable case of jurisdictional error. It was for the applicant to make her case; and, in any event, the applicant had the benefit of legal assistance before the Tribunal.

10. Paragraph 3 of the Affidavit asserts the Tribunal failed to serve documents in a proper manner. The applicant was unable to identify the documents this paragraph claims the Tribunal failed to serve properly. For that reason alone the ground would disclose no arguable case of jurisdictional error.

11. In answer to my question whether she could identify the documents to which this paragraph of the affidavit was intended to refer, the applicant claimed the interpreter before the Tribunal was poor. The applicant, however, could not identify any evidence she had given to the Tribunal that she claimed had been misinterpreted or not interpreted. The applicant went so far as to state that whatever she said was not interpreted. The applicant’s claims of poor interpretation, therefore, would disclose no arguable case of jurisdictional error.

12. Paragraph 4 of the Affidavit would also not disclose an arguable case of jurisdictional error because it does not identify the “correspondences” it claims the Tribunal “failed to do . . . incorrectly and insufficiently [sic]”; and the applicant was unable to identify at the hearing any such “correspondences”.

13. Paragraphs 5 and 8 of the Affidavit assert the Tribunal denied the applicant the right of representation and assistance. Although the applicant repeated that assertion at the hearing before me, she accepted the assertion was incorrect. The applicant did so after she was shown a copy of the Tribunal’s hearing record of the hearing before it on 3 August 2018 which recorded the presence of two representatives.[12] Further, there is no doubt the applicant had the assistance of a migration agent who was also a lawyer.[13] Paragraphs 5 and 8 of the Affidavit, therefore, would disclose no arguable case of jurisdictional error.

    [12] Exhibit B

    [13] Exhibit C

14. Paragraph 6 of the Affidavit asserts the applicant was not aware of the way in which the Tribunal processes applications, and she was not in a position “to properly present the facts” on which she relied. When I asked the applicant whether she wanted to say anything about this paragraph she said “no comment”. The paragraph, as stated, would disclose no arguable case of jurisdictional error. It does not disclose the facts it asserts the applicant was not in a position to present, or the reasons why the applicant could not properly present the facts.

15. Paragraph 7 of the Affidavit would disclose no arguable jurisdictional error because it relies on procedural errors made by “the department”, not by the Tribunal, and in any event it does not identify the “procedural errors”.

16. Paragraph 9 of the Affidavit would disclose no arguable jurisdictional error because it does not identify the “legal position” the ground claims the applicant was not given an opportunity to properly consider, or the facts and matters on which the ground relies for claiming the applicant was not given the opportunity to properly consider her legal position. In any event, on the material that is before me, there could be no arguable case that the applicant was not afforded an opportunity, as required by the Act, to present her case.

17. Paragraph 10 of the Affidavit would disclose no arguable case of jurisdictional error because it consists of nothing more than asserted legal conclusions without identifying the facts on which such conclusions are said to be based.

18. Paragraph 11 of the Affidavit would disclose no arguable case of jurisdictional error because it does not identify the material on the basis of which it is asserted the Tribunal considered the applicant’s case as being no different to any other applicant. In any event, it is beyond argument that there is nothing in the Tribunal’s reasons which could support the assertion made in paragraph 11 of the Affidavit.

19. Paragraph 12 of the Affidavit would disclose no arguable case of jurisdictional error. It is not clear what the ground intends to convey by the expression “personally subjective view”. To the extent the paragraph is intended to claim the Tribunal did not consider the evidence before it or, having considered the evidence, the Tribunal arrived at unreasonable or irrational findings, such claim would not be reasonably arguable because the paragraph does not identify any evidence the Tribunal failed to consider, or any unreasonable or irrational findings. In any event, whatever paragraph 12 is intended to claim, it is framed in the form of a bald assertion unsupported by any facts on which it is said to be based.

20. Paragraphs 13 and 14 of the Affidavit refer to a Temporary Business Entry (Class UC) visa. That would disclose no arguable case of jurisdictional error because there is no suggestion the applicant applied for such visa. In any event, the paragraphs make bald assertions unsupported by any facts on which they are based.

21. Paragraph 15 would not disclose an arguable case of jurisdictional error because it asserts a denial of natural justice and procedural error without stating the facts on which it is claimed to be based.

22. Paragraphs 16 and 17 appear to be intended to relate to either or both the applicant’s not attending the first court date or the applicant’s delay in filing her application in this Court. In any event, they would not disclose an arguable case of jurisdictional error.

Conclusion on prospects of obtaining order under s.477(2)

1. Given:

   a)the substantial delay in the applicant filing an application with this Court for remedies in relation to the Tribunal’s decision of 14 August 2018;

   b)my finding that the applicant has not given any adequate explanation for the delay; and

   c)my conclusions that none of the grounds on which the applicant would propose to rely, if an order under s.477(2) were made, discloses an arguable case of jurisdictional error,

   it follows that if I were to set aside the Registrar’s orders of 10 October 2019, the applicant would have no reasonable prospects of establishing that it would be necessary in the interests of the administration of justice that an order be made extending the time provided by s.477(1) of the Act by which the applicant file an application to this Court be extended to 18 September 2019; and, for that reason, the applicant would have no reasonable prospects of the Court making an order under s.477(2) of the Act.

Conclusion and disposition

1. I have concluded I am not satisfied that the applicant has given an adequate explanation for not appearing before the Registrar on the first court date, or that she has given a satisfactory explanation for her delay in filing her application in a case to set aside the Registrar’s orders. I have also concluded that if the Registrar’s orders were set aside the applicant would have no reasonable prospects of obtaining an order under s.477(2) of the Act. Given these findings, I am satisfied that I should not set aside the Registrar’s orders. I would have been so satisfied even if I had been satisfied the applicant had given an adequate explanation for not appearing before the Registrar on 10 October 2019, for her delay in filing her application in a case to set aside the Registrar’s orders, and for her delay in filing an application in relation to the Tribunal’s decision because I have concluded that none of the grounds on which the applicant would propose to rely for setting aside the Tribunal’s decision is arguable.

2. I propose, therefore, to order that the application in a case be dismissed. I will consider the question of costs at the time I pronounce my order dismissing the application in a case.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 14 February 2020