DTY18 v Minister for Home Affairs
[2020] FCCA 3140
•20 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTY18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 3140 |
| Catchwords: MIGRATION – Where applicants voluntarily left the country with no right of return –– whether the application is moot – whether the provision of relief would be futile – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05. Migration Regulations 1994 (Cth), sch.2 cl.866.411. |
| Cases cited: BHO17 vMinister for Immigration & Anor [2018] FCCA 2257 |
| First Applicant: | DTY18 |
| Second Applicant: | DTZ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2127 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 17 June 2020 |
| Date of Last Submission: | 2 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 20 November 2020 |
REPRESENTATION
| The First Applicant appearing in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Applicant’s interlocutory application filed on 4 March 2020 be dismissed.
The Applicants pay the Respondents’ costs fixed in the sum of $1,495.
The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG2127 of 2018
| DTY18 |
First Applicant
| DTZ18 |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an interlocutory application for reinstatement of proceedings filed on 4 March 2020 pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). This proceeding was dismissed by Registrar Carlton on 11 December 2019 under r13.03C(1)(c) of the Rules because of the Applicants’ non-attendance at a directions hearing.
By their original application filed 20 July 2018, the Applicants sought judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 May 2018. The Tribunal’s decision affirmed a decision of a Delegate (“the Delegate”) of the First Respondent (“the Minister”’) refusing to grant a protection visa.
The interlocutory application for reinstatement of proceedings was heard on 17 June 2020.
For the reasons which follow I have concluded that the Application in a Case must be dismissed.
Background
Given my decision outlined below, this narration of the background is not strictly necessary. It is included to assist the parties in the event that I am found to be wrong about the decision I have come to in this matter.
The Applicants are Indian citizens who belong to the Bania caste. The First Applicant belongs to the Jain faith and the Second Applicant was a Hindu who become a Jain when she married.
On 26 September 2002 the Applicants arrived in Australia as the holders of Class UC (Business) Subclass 456 visas. Since their initial arrival in Australia, the First Applicant has departed and re-entered Australia 16 times and the Second Applicant last returned to Australia from India on 25 March 2011.
On 28 April 2014, the Applicants applied for Class XA Subclass 866 protection visas (“the protection visas”).
On 8 December 2013, the Applicants attended an interview with the Delegate.
On 8 December 2014, the Delegate refused to grant the protection visas, finding that the First Applicant’s claim that he was facing an ongoing risk of harm lacked plausibility.
On 19 January 2015, the Applicants applied for review of the Delegate’s decision at the Tribunal.
On 2 February 2016, the Applicants were invited to a hearing before the Tribunal.
On 2 March 2016, the Applicants’ representative requested a postponement of the hearing due to an administrative error on his behalf. The Tribunal refused the request.
On 8 March 2016, the Applicant’s representatives provided further submissions to the Tribunal, including:
a)a copy of a 13 June 2013 Ministerial Request;
b)a written statement by the First Applicant;
c)a written witness statement by Bhupinder Goel dated 8 March 2013;
d)a statement by the Second Applicant’s younger brother dated 8 March 2016;
e)a witness statement from the Second Applicant’s elder sister; and
f)an excerpt from the Ministerial Review summary regarding the Applicants dated 25 July 2013.
On 10 March 2016, the Applicants appeared before the Tribunal, represented by their registered migration agents. During the hearing, a request was made by the Applicants’ representative for the presiding Member to recuse himself on the basis of apprehended bias.
On 11 April 2016, the Applicants’ representative wrote to the Tribunal’s President seeking the recusal of the presiding Member.
On 15 April 2016, the Member notified the Applicants in writing that he refused to recuse himself and the Applicants were invited to provide a post-hearing submissions by 29 April 2016. The Applicants’ representative did so on 29 April 2016.
On 3 May, 2018, the Applicant wrote to the Tribunal by email to reiterate their claims.
On 30 June 2018, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the visa.
On 20 July 2018, the Applicant applied to this Court for judicial review of the Tribunal’s decision. That application was listed for directions on 11 December 2019.
On 24 August 2018, the Minister filed a response to the Applicants’ application, seeking orders that the application be dismissed because the application invites the Court to undertake impermissible merits review and does not establish any jurisdictional error in the Tribunal’s 30 June 2018 decision.
As stated above, the Applicant failed to attend the directions hearing on 11 December 2019, with the result being that his application was dismissed pursuant to r13.03C(1)(c) of the Rules.
Interlocutory application
By their Application in a Case filed 4 March 2020, the Applicants seek reinstatement of the initiating application filed on 20 July 2019. The Applicants submit that they were unable to appear at the directions hearing because they had travelled to India due to the Second Applicant’s mother’s “emergency surgery…which had very low chances of survival provided (sic) the terminal nature of the cancer as well as her age factor.”: see Application in a Case at [2].
The Application in a Case states at [3]:
“I realised I may be risking my life going back home because my enemies are still searching for me. However, I deduced that if I could stay in hiding and keep myself from making public appearances then I may be able to avoid the inevitable for some time, at least until I could find a better course of action.”
The Application in a Case is supported by the First Applicant’s affidavit sworn 15 January 2020 which annexes hospital records from Ivy Hospital in Mohali, including several discharge summaries for Mrs Angoori Devi. These discharge summaries show a hospital stay by Mrs Devi from 28 July 2019 until 5 August 2019, and day visits at the hospital by Mrs Devi on 20 May 2019, 3 June 2019, 27 August 2019, 18 September 2019 and 9 October 2019.
Consideration
The First Respondent filed written submissions 16 June 2020 opposing the application to set aside the orders. The First Respondent submits that:
a)there is insufficient reason for the Court to set aside the dismissal order; and
b)the reasons proffered by the Applicant are not supported by medical evidence sufficient enough to found a reasonable excuse for non-attendance at the directions hearing: see First Respondent’s submissions at [8] – [10]. .
The First Respondent also effectively submits that there are no reasonably arguable prospects of the substantive application succeeding: see First Respondent submissions at [12] – [21].
Additionally, just prior to the hearing, as well as during the hearing, the First Respondent made submissions that relief should not be granted as the Applicants:
a)are offshore in India;
b)do not have a right of re-entry into Australia; and
c)cannot be granted a protection Visa because a criteria for that Visa is that the Applicant must be in Australia in order for the Visa to be granted: see clause 866.411 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”); see also BHO17 vMinister for Immigration & Anor [2018] FCCA 2257 (“BHO17”) at [12] – [13].
The First Respondent relies on an affidavit of Mr Matthew Daly affirmed on 16 June 2020 which provides evidence proving that the Applicants are offshore and do not hold a Visa which would permit re-entry into Australia.
In BHO17, Judge Heffernan states at [12] – [13] that:
“12. As the Minister submits, cl.866.411 of the Migration Regulations 1994 (Cth) stipulates that an applicant must be in Australia in order for a protection visa to be granted. Counsel for the Minister referred me to a number of authorities were are conveniently summarised in SZAOE v Minister for Immigration & Multicultural & Indigenous Affairs. The Minister submits that as the applicant is outside this country and has no right to return, his application is moot and futile. This was the position taken by the Full Court in Tchoylak v Minister for Immigration & Multicultural Affairs and again in Bolea v Minister for Immigration & Multicultural Affairs. Both of those cases dealt with circumstances in which an applicant had been removed from the country by the Minister. In this matter, the applicant voluntarily left the country. It is submitted by the first respondent in effect that given the applicant is outside this jurisdiction, he has no right of return. Even if this application were to be successful, the Administrative Appeals Tribunal would have no other option but to affirm the decision of the Delegate and that for that reason this Court should refuse to grant relief because to do otherwise would be futile.
13. I accept that submission. It is most unfortunate for the applicant that his present circumstances render these proceedings moot and futile. He made an impassioned request to the Court to consider his circumstances and those of his wife and his children, and assured the Court that in all the time that he had lived in Australia, he had been a good citizen. Those matters may well be true, but this Court does not have the power to grant the applicant a visa. I accept that this case is moot and it would be futile to issue constitutional writs.”
The Applicants were invited by the Court to make written submissions in relation to the Respondent’s additional grounds of opposition and written submissions were received on 2 July 2020. The substance of the submissions are, with respect to the Applicants, difficult to discern but seem to be to the effect that clause 866.441 of the Regulations is ancillary to the principal objects of the legislation and that the principal objects of the legislation should be given effect to.
I accept the submission made by the First Respondent that the Applicants cannot be granted a protection visa and the Applicants make no submission which persuades me that the authorities referred to in BHO17 are incorrectly decided. The application is moot as there is no capacity to grant the Visa that the Applicants seek given that they are offshore.
In those circumstances, the Court must dismiss the Application in a Case filed on 4 March 2020.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 20 November 2020
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