DWF17 v Minister for Immigration

[2019] FCCA 981

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWF17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 981

Catchwords:
MIGRATION – Judicial review – no appearance by applicant at AAT hearing – no satisfactory explanation for absence – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: DWF17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 342 of 2017

Judgment of: Judge Young

Hearing date: 9 April 2019

Date of Last Submission: 3 April 2019

Delivered at: Darwin

Delivered on: 9 April 2019

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms Stokes

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. (1)    That the application filed 17 August 2017 be dismissed.

2. (2)    That the Applicant pay the first respondent’s costs in the sum of $3,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT darwin

ADG 342 of 2017

DWF17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. 1.  These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. 2.  This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 6 July 2017 affirming the delegate’s decision to refuse the applicant a protection visa.

3. 3.  The applicant was invited to attend an interview with the Tribunal on that day in relation to his protection claims but did not appear.

4. 4.  The applicant is a citizen of Indonesia. He asserted in a statement attached to his protection visa application that in 2016, in Jakarta, one of his friends from school was protesting about the failure of the government to build an overhead bridge. Apparently, the friend’s child was injured in a car accident that could have been avoided had the construction of the bridge been finished in a timely way. His friend wished to organise protests against the government over this failure and the applicant said that he advised the old school friend. It was said that there were nearly 100 protestors protesting against the government’s delinquency in relation to the bridge. The applicant says that soon after the demonstration, a large number of police swooped on the protestors who were arrested and harassed. Police officers were said to have broken into the protestors’ homes, doors were kicked in, locks prised open, cash and private property confiscated and protestors detained. He said there were mass kidnappings involving the whole Jakarta area and many police. The applicant said that because he was involved his family advised him to leave the country.

5. 5.  The delegate’s decision on 19 September 2016 did not accept these claims were credible and reasons were given, primarily because there was no information to suggest that in 2016 rights were supressed or the right to political dissent was repressed in the way the applicant claimed. The applicant was refused a protection visa and sought a review of that decision in the Administrative Appeals Tribunal. The applicant failed to appear before the delegate and there was never any explanation offered for his failure to appear. Nevertheless, the delegate considered the claims and did not find them credible, essentially for the reasons I have mentioned and because they lacked detail as well.

6. 6.  Subsequently, the applicant was invited to an interview by the Tribunal on 6 July 2017. Again, as noted, he failed to appear. At no point until his application for review to this court was lodged on 17 August 2017 has the applicant offered any explanation for his failure to appear.

7. 7.  In conformity with subsections 426A(1A) and (1B) the Tribunal dismissed the application but provided a notice to the applicant that his application might be reinstated if he applied within 14 days. A notice of what was required was attached to the decision record. That decision record was emailed to Ms Meng Meng Fu, the authorised recipient for the applicant, on the day of the decision. The applicant today told me that Ms Fu was, in fact, a lawyer and his lawyer throughout. There was no application for reinstatement within the 14 days and on 24 July, some 18 days later, the Tribunal made a decision referring to the facts that I have just mentioned: the failure to appear on 6 July 2017, the notice under subsections 426A(1A) and (1B), finally, dismissing the application.

8. 8.  I asked the applicant today why he had failed to appear on 6 July. He said that he had injured himself about five days before 6 July while jogging and broke a bone in his ankle.  He said that he almost immediately informed Ms Fu that he would be unable to attend the hearing on 6 July.  He said that closer to the hearing date on 6 July he telephoned Ms Fu but was unable to make any contact with her. He said that thereafter, that is, from before the hearing on 6 July, he was unable to make any contact whatsoever with Ms Fu and her telephone seemed to be out of order and he has not spoken to her since.

9. 9.  When I asked him how he had heard about the Tribunal’s adverse decision, the applicant told me that he had first heard that the matter was before the court when he was informed by someone from the registry that the matter was on for hearing today, that is, on 9 April 2019. What is left out of that explanation is how the application to this court came to be made.

10. 10.    I asked the applicant about that and pointed out to him that he had actually signed an application to this court for review of the Tribunal decision that was lodged on 17 August 2017, about six weeks after the first decision and less than a month after the final decision of the Tribunal. He acknowledged that the signature on the application was his. He said, when I asked him about the date that appears on the application, that is, 17 July 2017, that the date was not included when he signed it.

11. 11.    The applicant said his lawyer gave him the document to sign but he did not know when that was. He suggested it may have been before the hearing on 6 July 2017 but when I pointed out to him that that was highly unlikely considering that the application had not been dismissed prior to 6 July 2017 he said he did not remember the sequence of events. It appears to me obvious that the applicant was informed by his lawyer some time after 6 July 2017 that his application had been dismissed, if the date on the application of 17 July 2017 is correct, or at least after the final decision on 24 July 2017.

12. 12.    The applicant has not provided any medical evidence to support the claim of an injury that incapacitated him so that he could not get to the registry. He has not provided any evidence to suggest that his grasp of English is so poor that he could not have telephoned the registry or the Tribunal at least soon after 6 July 2017 to find out what had happened to his application and he has certainly not provided any evidence from his then lawyer, Ms Fu, to support the claims. I am not satisfied that there is any adequate explanation from the applicant about his failure to appear on 6 July 2017 and I am not satisfied that the notice given under section 426A(1B), that is, of entitlement to reinstatement within 14 days, was not given to him.

13. 13.    I will not read the grounds of review in their entirety but I will summarise them. The applicant simply says that he was “shocked” to receive the AAT decision. It is not stated, when he read that, and it is inconsistent with the narrative he gave me today, but leaving that aside, he said that he was too ill to attend and although he was given 14 days to reply this was not enough for him to respond.

14. 14.    That is inconsistent with the narrative he gave me today which was that he was unaware of the decision and unaware, at the relevant time, of the opportunity to respond within 14 days. He complains about various other apparent failings by the Tribunal which I do not consider to have any merit and which certainly do not constitute jurisdictional error. I see no error in the way the Tribunal has dealt with the matter. The application is dismissed.

I certify that the preceding fourteen(14) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 12 April 2019