DYJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 72
•11 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 72
File number(s): SYG 2121 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 11 February 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for reinstatement – no reasonable excuse for non-attendance – no merit to substantive application – application for reinstatement dismissed. Legislation: Migration Act 1958 (Cth), s.424A
Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)
Cases cited: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67
Singh v Minister for Immigration and Border Protection and Anor [2016] FCA 620
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 8 February 2022 Date of hearing: 8 February 2022 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondents: Ms Leonard ORDERS
SYG 2121 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
11 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application for re-instatement is dismissed.
2.The Applicant to pay the First Respondents costs fixed in the amount of $2000.00.
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 HUMPHREYS
INTRODUCTION
The applicant is a Bangladeshi citizen. The applicant left Bangladesh and travelled to South Africa on 2 January 2007, until January 2011. During that time the applicant also travelled to Mozambique, Namibia and Malaysia.
During the applicant’s time in South Africa, he visited Bangladesh twice. First, between April 2011 and September 2011. During this time the applicant married his wife. The applicant’s wife and daughter remain in Bangladesh.
The applicant next visited Bangladesh between May 2012 and November 2012. The applicant returned to South Africa in November 2012 where he remained until leaving for Australia in July 2013.
The applicant arrived in Australia on 23 July 2013 on a visitor’s visa. The applicant lodged an application for a Protection visa on 29 August 2013. On 15 December 2015 a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).
On 21 June 2018 the applicant appeared before the Tribunal. The matter had been postponed on prior two occasions before the Tribunal due to claimed illnesses suffered by the applicant. With the assistance of an Interpreter, the applicant gave evidence and presented submissions. On 27 June 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.
The applicant sought judicial review of the Tribunal’s decision in this Court. The matter was originally listed for hearing in December 2019. At the request of the applicant, the hearing was adjourned on the basis of a medical certificate that the applicant was unfit to attend Court. It was then listed for the 14 February 2020 but was adjourned to 24 February at 2.00 pm on the Court’s own motion.
At 11:20 am on 24 February 2020, the applicant forwarded to the Court a medical certificate and requested that the matter be adjourned to another day. That medical certificate stated as follows:
(the applicant) is suffering from a medical illness and he has been advised to take rest today.
The certificate was signed by a Doctor Majlish of Lakemba and was dated 24 February 2020. The applicant had apparently attended Dr Maljish’s surgery in the morning for the purposes of obtaining the medical certificate.
The medical certificate was provided to the legal representatives for the first respondent. In a response, the first respondent noted that the certificate did not indicate that the applicant was unable to attend Court for a two hour hearing event sitting down.
In an email from the Court at 12:08 pm on 24 February 2020, the applicant was advised as follows:
I note that this is the second application for an adjournment been made on medical grounds. The medical certificate does not indicate that the applicant is unfit to attend court. It is entirely silent as to the nature of the medical condition and how it impacts on his capacity to attend Court.
The Court notes that extensive written submissions had been already been filed. In these circumstances, the Court is not of the view that it is appropriate for the matter to be adjourned, particularly, due to the very late nature of the application and the prejudice to the respondent in terms of costs and time thrown away.
The Court also notes there is a considerable need to finalise matters. There was an acute shortage of unallocated Court time. Effectively the hearing time allocated this matter would be lost as the Court would be unable to list another matter to take its place. Case management is a relevant consideration in considering applications for adjournment.
Accordingly the application for an adjournment is denied.
Should the applicant not attend, the Court may dismiss the matter in his absence.
The matter remains listed for 2 pm today.
When the matter was called on at 2 pm the applicant did not appear. The Court attempted to telephone the applicant in Court but there was no answer. Had contact been made, the Court would have allowed the applicant to appear by telephone.
On the application of the first respondent, the Court dismissed the matter pursuant to
r 13.03C(1)(c) of the then Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
On 12 March 2020, the applicant filed an Application in the Case seeking that his matter be reinstated. The Court notes with some regret, the length of time it is taken for the matter to be listed for the hearing of the reinstatement application.
THE LAW
The relevant principles in relation to reinstatement are conveniently set out in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. Reinstatement is discretionary and 3 factors should be considered:
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 assigned 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… If not then there is no purpose in reinstating.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the commencement of the hearing the respondent’s written submissions on the substantive application were translated to him. The Court explained the procedure the Court would follow in the hearing. The Court also explained the 3 relevant matters it would consider in determining whether to reinstate the applicant’s application.
The applicant claimed that he had not seen the first respondent’s written submissions before. The first respondent however, was able to provide a copy of a letter sent via email on
4 December 2019 enclosing the submissions. The letter also advised that if the applicant failed to appear the matter could be dismissed in his absence.
In the applicant’s Affidavit filed in support of the application for reinstatement the applicant deposed “that he was very sick and had to see a Doctor in the morning”. In an email sent to the Court on 18 March 2020 the applicant stated that he was suffering from:
stomach pain and temperature… my GP simply suggested me not to move around and stay at home as much as I could. I hope the opposition and the Court would appreciate my decision not to attend the Court amid the Corona epidemic.
No additional medical evidence has been supplied that supports the claims made by the applicant.
In addition the applicant told the Court he was not an educated man and did not read English well. The applicant claimed that he was unaware he was required to provide a medical certificate that indicated he was unable to attend Court.
In relation to why he did not answer a phone call made to him shortly after 2.00 pm by the Court the applicant stated that he was not sure where he put his telephone and fell asleep.
In relation to his substantive application, the applicant stated that he had nothing further to add to his written submissions.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent properly conceded that there was no real prejudice to the Minister other than costs. However, this of itself was not a reason to allow reinstatement. Further, there was the issue of yet further delay in the proceedings.
It was submitted that there were considerable inconsistencies in the applicant’s evidence of why he was unable to attend Court. This included for the first time that a friend actually sent the medical certificate to the Court from an Internet Café. It was submitted that the Court would not accept that the applicant’s explanation was reasonable.
Based on the grounds of judicial review in the application it was submitted that the applicant did not have reasonable prospects of success in the substantive application.
CONSIDERATION
In relation to the claim that the applicant was unable to attend Court due to illness, firstly it is clear the applicant made a deliberate decision, after being advised that the matter would go ahead at 2.00 pm and could be dismissed in his absence, not to attend Court. The applicant admits as much in his email of 18 March 2020. The Court also notes that the medical certificate shows that as 24 February 2020 the applicant lived in Wiley Park. Notwithstanding the applicant’s illness, he was apparently well enough to visit his General Practitioner in the morning, yet claims he was unable to attend Court in the afternoon.
The medical certificate is entirely silent as to the condition the applicant was suffering from and any opinion as to the capacity of the applicant to attend the Court. It is well established that a medical certificate should identify the medical condition that would prevent the sufferer from participating effectively in a Court hearing. The medical certificate provided by the applicant plainly does not address that critical question: (see; NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [8] per Lingren J and Singh v Minister for Immigration and Border Protection and Anor [2016] FCA 620 at [6] per Markovic J).
The medical certificate relied upon by the applicant as to the first adjournment application before the Court specifically stated that he was unfit to attend Court. The first medical certificate was from a different medical practitioner as the second medical certificate. Both General Practitioners work in the same street in Lakemba but at different medical practices. The reason why the applicant would consult a different medical practitioner on the second occasion is unclear.
The Court also takes into account that this was the second occasion that the applicant was apparently unable to attend Court due to claimed illness. The applicant’s matter before the Tribunal had been postponed on two occasions for the same reason. There is a significant history of claiming to be unwell and not able to appear before this Court and the Tribunal. No reasonable explanation has been given by the applicant as to why he did not answer his telephone when the Court attempted to contact him at around 2.00 pm on 24 February 2020.
The Court has considerable concerns as to the claims made by the applicant that he was so ill that he was unable to attend Court noting that he was aware that if he did not, the matter could be dismissed. The Court considers the excuse given by the applicant as to his failure to attend Court to be difficult to accept in the light of his overall history including the material contained within the medical certificate relied upon and being unable to attend Court or the Tribunal due to illness on multiple occasions. The Court has considerable concerns as to the credibility and truthfulness of the applicant. The Court considers the lack of a reasonable explanation does not favour reinstatement.
In relation to the prejudice caused to the respondent, the Court notes the proper concession made by the first respondent. However, this is not the end of the matter. In Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] the following was said:
There is significant public interest in the timely and effective disposal of litigation, particularly in public law where delays in dealing with applications for visas are to be avoided if possible.
There is also a significant public interest in the finality of administrative decisions. In Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 at [15] the following was said:
An extension of time in seeking relief against a decision or judgement can only be granted if it is necessary to do justice between the parties. That means it is necessary to have regard to the history of the matter, the conduct of the parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires there be an end to litigation about the efficacy of such acts or decisions.
The Court notes however, that the applicant acted with reasonable expedition in lodging a reinstatement application. In terms of prejudice the Court considers this again to be neutral in terms of the reinstatement application.
The last matter for consideration involves an analysis of the substantive matter and its prospects of success. Any consideration should be at an impressionistic level and not involve a final determination as to the merits of each of the claims.
Nine grounds of judicial review are set out in the Initiating Application to the Court. In summary form, they allege a denial of procedural fairness and natural justice. This includes failing to put inconsistencies in writing to the applicant for comment, failing to give him an opportunity to comment on any adverse information available to the Tribunal before the hearing, failing to raise internal relocation, failing to confirm whether the applicant understood the critical issues in relation to the definition of complementary protection, which he asserts amounts to a denial of procedural fairness and natural justice. There was further an allegation of failing to comply with s 424A of the Migration Act 1958 (Cth) the Act, failing to put any adverse issues to the applicant post-hearing, misjudging the claim and not having a fresh look at it. The applicant asserts that the Tribunal unreasonably pursued him on an issue so as to damage his credibility rather than having a proper look at his claims of a well-founded fear.
The applicant’s six-page written submissions appear to contain an additional set of assertions over and above what is set out in his application to the Court. These include that, the Tribunal failed to consider the application of the complementary protection criterion, failed to have regard to the applicant’s mental state and loss of memory in relation to his credibility. He also claimed that the Tribunal’s finding that he was “not pursued and threatened by the opposition political parties” was legally unreasonable.
Ground one is a bare assertion that the applicant was denied procedural fairness and natural justice. No particulars are provided. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
Grounds two, three, four, six and seven advance claims the Tribunal failed to put certain information to the applicant in accordance with s 424A of the Act. There is no requirement for the Tribunal to put a running commentary of its concerns to the applicant, particularly about any concerns regarding inconsistencies or the absence of evidence. Further, there was no requirement for country information “not specifically about the applicant or another person” to be put to the applicant for comment, as is asserted by ground three. Ground four deals with the issue of internal relocation. Having found against the applicant on credibility, that he had no fears of returning, it was unnecessary for the Tribunal to deal with the issue of internal relocation.
There is clear material that indicates that the Tribunal explained the test for both refugee and complementary protection to the applicant with the assistance of an Interpreter at the commencement of the hearing and he confirmed that he understood. There is nothing to suggest that the applicant was denied a real and meaningful invitation to participate in the hearing and subsequent process.
Ground six fails on a factual level as the Tribunal did not reproduce any extracts of the primary decision which it relied upon and there is nothing to indicate that it was “quite influenced and biased” by the decision of the delegate. There is nothing to indicate that the Tribunal was not open to persuasion. The allegation of either apprehended or actual bias on the part of the Tribunal has not been distinctly made or proven.
Ground seven claims the Tribunal did not put any adverse issues to the applicant post hearing. A perusal of the decision record indicates there was no information that was required to be put to the applicant. It is clear that the Tribunal did disclose many of its concerns about the applicant’s evidence and these were put to him during the hearing. In so doing, the Tribunal followed the requirements of s 424AA of the Act. No error is apparent.
Ground eight deals with the use of country information. It is entirely a matter for the Tribunal as to how it deals with country information: (see; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). No error is apparent.
Ground 9 asserts that the Tribunal was desperate to damage the applicant’s credibility and did not have a proper and fair look into the reasons of his well-founded fear. This fails at a factual level. The Tribunal undertook a detailed analysis of the applicant’s claims and considered all of the evidence before it including issues relating to inconsistencies in the applicant’s evidence and implausible assertions.
At paragraph 8 of the applicant’s submissions, he claimed that the Tribunal failed to consider properly the complementary protection criterion. Again this fails at a factual level as there is a detailed consideration of the complementary protection criterion in paragraph 69 through to 71 of the Tribunal’s decision. This included consideration of the applicant’s health claims.
The claim that the Tribunal failed to have regard to his mental state and memory loss at the hearing must also be rejected. The Tribunal did consider these issues specifically in paragraphs 51, 52 and 54 but rejected his claims based on his credibility which included an overall assessment of his evidence.
Lastly, the applicant raises legal unreasonableness. No further particulars are provided. A review of the totality of the Tribunal’s findings to the Courts mind does not indicate a decision so unreasonable no reasonable decision-maker could ever come to it. The decision was open to the Tribunal on the evidence before it and for the reasons it gave, including its credibility findings as to the applicant.
Even at an impressionistic level, the Court is not satisfied that the grounds of judicial review have reasonable prospects of success. That being the case, this mitigates strongly against reinstatement.
DISPOSITION
Taking into account all the matters listed above, the Court is of the view that the matter should not be reinstated. There is nothing in the first two considerations which would strongly support reinstatement. The third consideration is strongly against reinstatement.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 11 February 2022
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