DXZ16 v Minister for Immigration

[2017] FCCA 2425

FEDERAL CIRCUIT COURT OF AUSTRALIA

DXZ16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2425

Catchwords:
MIGRATION – Adjournment application – assessment of the merits – no identification of jurisdictional error – adjournment refused – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424A

Applicant: DXZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1179 of 2016

Applicant: DZY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1180 of 2016

Applicant: ECB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1208 of 2016

First Applicant: ECJ16

Second Applicant: ECK16

Third Applicant: ECL16

Fourth Applicant: ECM16

Fifth Applicant: ECN16

Sixth Applicant: ECO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1209 of 2016

Judgment of: Judge Vasta

Hearing date: 26 September 2017

Date of Last Submission: 26 September2017

Delivered at: Brisbane

Delivered on: 26 September 2017

REPRESENTATION

Counsel for the Applicant BRG1179/2016 before withdrawing leaving the Applicant self-represented with the assistance of an interpreter: Mr Markwell

Counsel for the Applicant BRG1180/2016 before withdrawing leaving the Applicant self-represented with the assistance of an interpreter: Mr Markwell

Counsel for the Applicant BRG1208/2016 before withdrawing leaving the Applicant self-represented with the assistance of an interpreter: Mr Markwell

Counsel for the Applicants BRG1209/2016 before withdrawing leaving the Applicants self-represented with the assistance of an interpreter: Mr Markwell

Counsel for the First Respondent in proceedings BRG1179/2016,BRG1180/2016, BRG1208/2016 and BRG1209/2016: Mr McGlade

Solicitors for the First Respondent in proceedings BRG1179/2016,BRG1180/2016, BRG1208/2016 and BRG1209/2016: SPARKE HELMORE

ORDERS

IN PROCEEDINGS BRG1179 of 2016

1. The application in a case filed on 25 September 2017 be dismissed.

2. The application filed on 20 December 2017 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00

IN PROCEEDINGS BRG1180 of 2016

1. The application filed on 20 December 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

IN PROCEEDINGS BRG1208 of 2016

1. The application filed on 23 December 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

IN PROCEEDINGS BRG1209 of 2016

1. The application filed on 23 December 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1179 of 2016

DXZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

BRG 1180 of 2016

DZY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

BRG 1208 of 2016

ECB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

BRG 1209 of 2016

ECJ16

First Applicant

ECK16

Second Applicant

ECL16

Third Applicant

ECM16

Fourth Applicant

ECN16

Fifth Applicant

ECO16

Sixth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This is an application for an adjournment of the matters of DXZ16, DZY16, ECB16, ECJ16, and others, and the Minister for Immigration and Border Protection.  There had been a previous matter of EXB16, which had been part of these proceedings, but isn’t any longer, and I will mention that a little later in these reasons.

2. The history of the matter is as follows.  The four applicants are in the following relationship to each other:  DXZ16 is the grandmother;  ECJ16 and his family, ECK, ECL, ECM, ECN and ECO16, are his children;  DZY16 and ECB16 are grandsons of the grandmother, but they are not children of ECJ16, their father is another person referred to by the Tribunal as Mr M who has not made any application;  and EXB16 is the granddaughter, but not a child of ECJ16, but certainly a granddaughter of DXZ16.

3. The group, if I can call them that, arrived here in Australia from Papua New Guinea as visitors on 14 June 2013.  They were attending a family event here in the country.  They have been here ever since. 

4. In September 2013, they all lodged protection visa applications.  The claim for protection really arises more from events involving the grandmother, which have then enveloped the rest of her family. 

5. In short compass, the claims are that the grandmother was married to Mr J.  Mr J, it is claimed, was killed in a road accident.  The family of Mr J perceive that the grandmother, using sorcery, caused that car accident, and therefore they, to exact revenge, have wanted to harm all members of the grandmother’s family.

6. The second claim relates to Mr S.  Mr S is the son of the grandmother’s cousin.  It is claimed that Mr S’s family perceived that the grandmother killed Mr S using sorcery, and, to exact revenge, Mr S’s family want to harm all members of the grandmother’s family. 

7. The third claim is for clan violence, saying that since 2011 there has been clan violence occurring in the grandmother’s ancestral village, and the Applicants, as members of one clan, feel that they will be attacked by another clan if they are returned to Papua New Guinea.

8. The granddaughter, EBX16, claimed that if she returned to Papua New Guinea she will be the subject of sexual harassment or sexual violence.  That aspect of her claim is quite separate and quite distinguishable from the rest of the claim that really relates to being an extended member of the grandmother’s family.

9. Now, in January of 2014, a Delegate of the Minister refused this protection visa application and, as a result, the Applicants all asked the Refugee Review Tribunal (“the RRT”) to review that decision. 

10. The RRT heard the matter in December 2014. The RRT gathered all of the Applicants, at that stage including EBX16 and the other four, and heard evidence. After that hearing, the Tribunal pointed out certain inconsistencies in what was said and, pursuant to s.424A of the Migration Act 1958 (Cth), asked for any comments that the Applicants would choose to make.

11. The Applicants made comment to those matters and, on 23 January 2015, the RRT gave its decision.  That decision was to affirm the decision not to grant the protection visas. 

12. Having made that decision on 23 January 2015, the Applicants had 35 days in which to file an application before this Court asking this Court to judicially review that decision made by the then RRT.  That day was around the end of February 2015. 

13. Instead, these applications, that the Court currently has before it, some were filed on 20 December 2016, and the others, three days later on 23 December 2016.  Depending on which actual application we are talking about, the applications were filed either 666 days out of time or 669 days out of time.

14. In the actual application for adjournment, the only grounds for the application for the extension of time really come from the grandmother’s application.  Her grounds are:

    “I received no information about appealing to the FCC at the time of the RRT decision.

    I had no knowledge of the legal system and lived outside the metropolitan area and relied totally on the migration agent, who received all communications.

    I am currently seeking legal assistance and anticipate amending grounds for appeal of the advice from legal Counsel.”

15. The matter came before me on a first court date in May of 2017, and on that day I looked at the grandmother’s application, and gathered the matters of DZY, ECB, ECJ and others, and EBX, and ordered that all of those matters be put before me on 5 June 2017.  All of the Applicants appeared on that day, and I was told certain things by the Applicants, who had an interpreter, and by Mr McGlade, who was appearing for the Minister.

16. I was informed that a Mr Julian Gormly, who was counsel from Sydney, was looking into the matters involving the Applicants, and that it was unsure whether Mr Gormly would be appearing or not for the Applicants.  I noted to counsel, Mr McGlade, and to the Applicants themselves that I hoped that Mr Gormly would be appearing so as to assist the Applicants.

17. Having made those remarks, I then made the order giving a timetable; that was that the green book be produced by 26 June 2017, that by 24 July the Applicants file and serve any amended application upon which they intend to rely, and by 21 August the First Respondent file and serve any affidavit upon which it proposes to rely, by 28 August, the applicant file and serve written submissions in support of the application for review, by 4 pm on 11 September, the Minister file and serve written submissions, and I set the matter down for hearing at 10:00 am today, 26 September 2017.

18. Notwithstanding those orders that I made, there was no further material filed by the Applicants.  The Minister filed the court book and filed their submissions. 

19. At 4.45 pm yesterday, 25 September 2017, the Applicant grandmother, really on behalf of all of the Applicants, filed an application in a case seeking an adjournment for 56 days.  The grounds for that adjournment were really contained within an affidavit of the grandmother that ended up being sworn this morning and handed up to the Court at the beginning of the hearing.

20. In it, the grandmother says that, paragraph 5:

    “After the applications for review of the decisions by the Department of Immigration and Border Protection was refused by the RRT on 23 January 2015, a person named Ian Rintaul helped prepare our judicial review applications in the Federal Circuit Court, but advised us that myself and other applicants must try and obtain a pro bono lawyer who would be able to assist with the matter.”

21. That paragraph does not say when Mr Rintaul helped them prepare the judicial review applications or why it was that it took that amount of time, from 23 January 2015 until 20 December 2016, to actually lodge the applications with this Court.  The affidavit follows on:

    “One of the factors that has been against us is that I have had little or no access to funds.  I have had to try and rely on legal persons on a pro bono basis or an assisted basis.  Another problem is that the better legal persons require funds upfront, and we have not been able to pay those fees.  I and the other applicants have tried to access a lawyer, but have been unable to access a legal person who could assist in the matter”

22. And these two paragraphs – paragraphs 9 and 10:

    “We did have some assistance from a barrister in Sydney, Mr Julian Gormly, who was able to have the matter of my granddaughter, EBX16, remitted back to the AAT.  The barrister in Sydney advised that he was unable to assist with the other family members’ judicial review applications, and we were left once more to try and figure it out on our own with absolutely no idea what we were doing.”

23. One would have some sympathy if that were truly the case.  However, there has been no evidence tendered to show what communications there were with Mr Gormly as to why it was that he was able to look at one matter and not the others at all.

24. However, when one then looks at an affidavit of Ms Caitlin McConnell that was filed in response to this matter, Ms McConnell speaks of having discussions with Mr Gormly just after the first directions hearing and then having another communication, it would seem, after the directions hearing. On the first of September, Ms McConnell speaks of being served with sealed documents in relation to EBX16, one of which was an outline of submissions which Mr Gormly had settled. 

25. That same day, Ms McConnell emailed the solicitors of EBX16 to inquire whether they were acting for any of the other four Applicants.  She received an email from Mr Gormly, sent on Friday 1 September 2017 at 3.46 pm, which reads as follows:

    “Hi Caitlin, that last email was intended ultimately for you via Alison.  I do not have instructions to act for any other member of the family either, though I will be appearing at the hearing of this matter which was in regard to EBX16. 

26. His submissions, though, were looked at very carefully by the minister.  The Minister ultimately acceded to those submissions, and I made an order by consent remitting the matter of EBX16 back to the Administrative Appeals Tribunal.

27. It would seem very clear from that email that it was not a case of Mr Gormly saying that he was unable to assist with the other family members and leaving them high and dry.  It was that he did not have instructions to act for the other members of the family. 

28. Mr Markwell, who has appeared today as Counsel, has informed the Court that he was briefed at 3 pm yesterday, the 25 September 2017, and that was why the application in the case was filed at five minutes to 5, less than two hours after he was briefed.

29. There has been absolutely no explanation as to what has been done between 5 June and today’s date, and certainly, and more importantly, no explanation of what has been done from 1 September 2017, when there is collateral evidence from the hand of Mr Gormly that he did not have instructions to act for any other member of the family, to 3.00 pm yesterday, 25 September 2017.

30. Mr Markwell has applied for the adjournment, saying, in effect, that he needs time to go through the matter.  And, even though he has not yet been briefed in the matter and he has only been briefed for the matter of an adjournment, he has submitted that if it is that I grant the adjournment that he would “crack the whip” to ensure that everything was done in a timely manner.

31. The problem is that the Court has already made orders to ensure that these applications are dealt with in a timely manner.  There is no explanation as to why this matter is not ready to proceed today, given that I, nearly four months ago, set the matter down for hearing today, other than Mr Markwell was briefed at 3.00 pm yesterday.  There is no explanation as to why Mr Markwell was briefed at 3.00 pm yesterday. 

32. It is symptomatic of this matter when one looks at the history.  Again, no explanation as to why this matter is filed 666 days out of time. 

33. The Court has a duty to ensure that its processes are not abused and that there is a proper running of justice, not just in this matter but in all matters, to ensure that the business of the Court is conducted expeditiously and properly. 

34. Mr Markwell has not given me any indication at all as to what sort of matter would constitute a jurisdictional error other than he was very concerned that the grandmother would be harmed if she went back to Papua New Guinea because of these claims of sorcery. 

35. That is a matter that was well and truly alive before the RRT, as it was then known.  And the RRT did quite thoroughly go through those matters.  Given the history of this matter and the lack of explanation as to why the matter is not ready to go today, I am of the view that the application for adjournment should be refused.

36. Now, I need to explain this to all of you, even though I did explain it to you on 5 June. 

37. This is not a hearing as to whether you should get a visa or not.  I do not have the power to grant a visa.  My duty here is to look at what the Tribunal did and to see whether they acted lawfully and to see whether or not they made a mistake in any of the reasoning that they applied in the matter. 

38. So when the matter of EBX16 was looked at, there was a mistake in the reasoning.  I could not give her a visa.  I could only just send it back to the Tribunal.

39. So what I have to do here today is to look at whether there was any mistake.  And while I have a great deal of sympathy for everything that you have said, it does not show to me that the Tribunal has made any mistake that would amount to a jurisdictional error. 

40. What the Tribunal has done is to look at the claims that were made.  What the Tribunal found was that looking at the evidence before it, it was not satisfied that there would be harm perpetrated on anyone from this family. 

41. Now, the question, really, is for me to look at not whether the Tribunal was right or the Tribunal was wrong, but whether the Tribunal was lawfully entitled to come to that conclusion.  Having looked at the Tribunal’s decision, the decision that it made and the conclusions it arrived at were well and truly open to it. 

42. Therefore, there is no jurisdictional error.  The Tribunal did properly consider the material that was before it and it did look at all relevant information.  Just because it came to a conclusion that others may not have come to, does not mean that there was any error in what the Tribunal concluded. 

43. So therefore, it is a matter where I cannot be satisfied that there was a proper excuse as to why it took so long after the Tribunal’s decision to make this application. 

44. And while I understand that there would be no prejudice to the Minister if I allowed the matter to proceed, there is no utility in allowing it to proceed because it is ultimately a matter that is doomed to fail.

45. Therefore, I have come to the conclusion that I should refuse the application to extend the time to bring the matter before this Court.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  10 October 2017