Eby16 v Minister for Immigration

[2019] FCCA 3685

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBY16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3685

Catchwords:
MIGRATION – Substantive application seeking review of the decision of the Immigration Assessment Authority.

PRACTICE & PROCEDURE – Application in a Case seeking reinstatement – substantive application dismissed for non-attendance in September 2019 – no satisfactory explanation for non-attendance – grounds of substantive application lack requisite merit – impermissible merits review – no reasonable prospects of success – Application in a Case dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Cases cited:

Autodesk Inc v Dysason (No.2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265

Applicant: EBY16

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3728 of 2016

Judgment of: Judge Nicholls

Hearing date: 12 December 2019

Date of Last Submission: 12 December 2019

Delivered at: Sydney

Delivered on: 17 December 2019

REPRESENTATION

Counsel for the Applicant: Mr A. Galapo (by Direct Access)

Solicitors for the Respondents: Minter Ellison Lawyers

Legal Representative for the Respondents: Mr J. Pinder

ORDERS

1. The Application in a Case made on 23 October 2019 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $1820.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3728 of 2016

EBY16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case (“the AIC”) made on 23 October 2019 seeking reinstatement of a substantive application made on 23 December 2016 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which sought review of the decision of the Immigration Assessment Authority (“the IAA”) made on 6 December 2016 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant (“the visa”).

2. The evidence before the Court:

   1    Copies of communications from the Minister and the Court’s Registry to the applicant tendered by the Minister to the Court on 18 September 2019 and tendered again in the current proceedings – “RE1”.

   2    A bundle of relevant documents filed and tendered by the Minister – Court Book – “CB” – “RE2”.

   3    The applicant’s affidavit of 23 October 2019, with annexures.

3. The applicant is a citizen of Sri Lanka. He arrived in Australia on 17 August 2012 (CB 164). He ultimately made a valid application for the visa in November 2015 (CB 123). His claims were initially set out in a written statement filed with his protection visa application (CB 86 – CB 94). He was assisted by a registered migration agent (CB 39).

4. The applicant claimed to fear harm on return to Sri Lanka because of his Tamil ethnicity. He gave an account of past harm in the period 1999 to 2012 from the Sri Lankan army, the police, and paramilitary groups. He claimed to have been arrested in Colombo in 2006, and in 2008 because of his unwitting assistance to a colleague who worked for the LTTE, and was detained and questioned in 2012.

5. The applicant attended an interview with the delegate. He was accompanied by his migration agent (CB 166.7). In essence, the delegate found that the applicant did not face a real risk of likely harm if he were to return to Sri Lanka, because the events of past harm occurred during wartime, and that with the reference to country information, the situation had changed. The applicant did not have a profile that would be of interest to the Sri Lankan authorities if he were to return.

6. The applicant’s matter was referred to the IAA in August 2016 (CB 186). The applicant made written submissions to the IAA (CB 203 – CB 214, with annexures).

7. The IAA accepted some of the applicant’s claims of past harm. However, the IAA found that the government in Sri Lanka had taken: “…a more proactive approach to human rights and reconciliation” ([48] at CB 231).

8. The IAA found that the applicant was not of interest to paramilitaries and political parties opposed to Tamil groups. The IAA was not satisfied he had a political profile such that he would be targeted on return ([70] at CB 235). The IAA affirmed the delegate’s decision.

Before the Court

1. The substantive application was made to the Court on 23 December 2016. The applicant attended at directions before a Registrar of the Court on 11 May 2017. Various orders were made for the conduct of this matter, including an order which gave the applicant the opportunity to file any amended application. The Registrar set the matter down for hearing on 7 September 2018.

2. This was subsequently vacated. By email dated 12 September 2019 the Court notified the applicant (and the Minister) that the matter was listed for further directions on 18 September 2019. That notification was sent by email, to the email address provided by the applicant in his substantive application to the Court.

3. At the Court event on 18 September 2019 there was no appearance by, or on behalf of, the applicant. The Court was satisfied based on evidence provided by the Minister at that time (RE1) that the Minister’s solicitors had written to the applicant on 13 September 2019 reminding him of the directions hearing. This notification was sent by express post to his residential address, which the applicant had provided in his substantive application, and by email, to the address provided by the applicant in the substantive application.

4. When the applicant did not appear, and given the circumstances above, the substantive application was dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

5. At the hearing of the AIC the applicant was represented by counsel. The applicant gave evidence and was assisted in this regard by an interpreter in the Tamil language.

Consideration

1. Although the AIC makes no reference to it, I understood the AIC to rely on Rule 16.05(2)(a) of the Rules. That is, given that the orders of 18 September 2019 (dismissing the substantive application) were made in the applicant’s absence, the Court may set aside this order.

2. The relief sought now by the applicant is discretionary. Such exercise of discretion must be done reasonably, and with some caution, given the competing interests. On the one hand sits the public interest in the finality of litigation. On the other the interests of the administration of justice. In particular whether, taking into consideration all of the relevant circumstances presented, there is a real dispute to be heard in the substantive application such that the interests of justice require it to be heard (Autodesk Inc v Dysason (No.2) [1993] HCA 6 per Gaudron J at [1] and [18]).

3. The principles relevant to the current consideration require focus, at least, (but not exhaustively) on the following three factors as explained in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 per Ryan J at [7]:

   (1)Whether there is a reasonable explanation for the failure to attend before the Court.

   (2)The prejudice which may flow to the other party (in this case the Minister) and how this may be alleviated.

   (3)Whether the application which is the subject of the application to reinstate has reasonable prospects of success.

4. In his affidavit the applicant has sought to explain his non-attendance before the Court. There are various points that arise here, and from the applicant’s oral evidence.

5. One, the applicant says he received the letter, by post, from the Minister’s solicitors on 20 September 2019. This was after the date of the Court event. On the evidence, annexed to the applicant’s affidavit, the letter by post was sent by express post on 13 September 2019. It was sent to the residential address provided by the applicant in his substantive application.

6. The applicant’s oral evidence before the Court was that he was unable to check his post office box within the time necessary, and therefore did not receive the letter before the scheduled Court event. The applicant’s affidavit made no reference to any such difficulties in accessing a post office box. At best as it could be understood, the applicant’s evidence before the Court was that he had arranged for redirection of his post from his residential address to a post office box. If so, none of this was notified to the Court or the Minister at the appropriate time.

7. The applicant did not provide a post office box as his address for service in his substantive application. Nor is there any evidence that he subsequently provided notification of any post office box to the Court’s Registry as being the address for service, or that correspondence sent to his residential address was subject to redirection. The Minister’s letter, therefore, was sent to one of the two addresses (residential and email) provided by the applicant in his substantive application.

8. Two, in any event, both the Minister and the Court sent notification of the Court event to the email address provided by the applicant in his substantive application to the Court. These emails was sent on 12 and 13 September 2019 respectively. There is no reference to not having received these communications at his email address in the applicant’s affidavit evidence.

9. However, in oral evidence the applicant said that his email address was accessed through his telephone, and that in May/June 2019 he had difficulties with accessing his email by this medium. He was unable to access his email in any other way because he said he had forgotten his password. It was not until after the Court event, in October 2019, that he was able to access his emails by way of a new email address.

10. The applicant’s evidence was very clear that he made no attempt to notify the Court’s Registry or the Minister’s solicitors of any difficulty in accessing his email in May/June 2019, or subsequently. What emerged from his evidence is that he made no attempt to notify the Court or the Minister’s solicitors of any change in the email address which he had provided as an address for service.

11. Three, the applicant asserts in his affidavit that he did not have the services of a barrister. What remained unexplained is why he took no steps to obtain the services of a barrister in the nearly three years since he made his substantive application. Nor was it explained how his not having had a barrister was relevant to his non-attendance at Court.

12. On the question of the non-attendance the Minister agreed that the applicant had sought to provide some explanation, but that that explanation was inadequate. Through his counsel, the applicant submitted that the situation was unfortunate. What remained, however, is that no satisfactory explanation was provided by the applicant as to why he did not take steps to notify both the Court and the Minister’s solicitors of the claimed difficulties in receiving communications, either by email, or by post.

13. In the circumstances, therefore, the applicant has not provided a satisfactory explanation for his non-attendance before the Court on 18 September 2019.

14. The Minister submitted that he would not be prejudiced if the substantive application were to be reinstated. Although this of itself is not a sufficient reason to reinstate the substantive application. However, of greater importance is that the grounds of the substantive application all lack requisite merit, such that it is in the interests of justice to reinstate the substantive application.

15. In this regard, there is no reason not to accept counsel’s statement to the Court that he had only recently been engaged to represent the applicant. However, and importantly, no application was made to amend the grounds of the substantive application, or indeed, was any indication of any such amendment offered.

16. I note that in this regard, and in any event, the applicant has given no evidence, let alone any explanation, as to why he did not obtain the services of any legal representative in the three years that this matter has been on foot before the Court. As set out above, orders made by the Registrar over two years ago gave the applicant the opportunity to file any amended application, albeit within a specified time limit. Why the applicant waited until now, or was otherwise unable, to obtain legal assistance, was never explained.

17. The grounds of the substantive application are in the following terms:

    “1. The Immigration Assessment Authority has refused to accept that the Applicant as a minority Tamil had suffered significant physical and mental harm by the Sri Lankan authorities and was detained by the Sri Lankan Army and thus made a jurisdictional error.

2. The Immigration Assessment Authority made the decision with an improper exercise of power in rejecting the Applicant's main claims of his previous assistance to the LTTE and his history with the Army and thus made a jurisdictional error.

3. The Immigration Assessment Authority has denied that the Applicant was suspected by the Sri Lankan authorities to be an LTTE member or supporter when he departed Sri Lanka and thus has made a jurisdictional error.

4. The Immigration Assessment Authority has disregarded the Applicant's claims that he will be targeted by the Sri Lankan authorities upon his return to Sri Lanka and has thus made a jurisdictional error.

5. The Immigration Assessment Authority has used excessive authority in denying the Applicant's fear of persecution stated in his Statement of Claims and has failed to give proper, genuine and realistic consideration to the merits of his claims and thus has made a jurisdictional error.”

1. As the Minister correctly submits, the applicant’s grounds are no more than a disagreement with the IAA’s findings and with its ultimate conclusion. A call for the Court to engage in impermissible merits review is not a basis on which to reinstate the substantive application.

2. What can be added to this is that the grounds misunderstand certain key aspects of the IAA’s reasoning and findings. Nor, it must be said, was the applicant’s position advanced following submissions by counsel, which, in effect, sought to describe the findings made by the IAA as variously being unfortunate in the applicant’s circumstances, or that the IAA did not place sufficient weight on the applicant’s evidence and claims.

3. This could only reasonably be understood on the evidence before the Court as yet another attempt to express grievance or dissatisfaction with the findings and conclusion made by the IAA. Ultimately jurisdictional error is not revealed, and for current purposes is not indicated, simply because the decision maker makes findings of fact with which an applicant disagrees, or with reasons probative of the evidence before it, makes findings that the applicant’s claims do not give rise to a real risk of harm. The IAA is not required to uncritically accept an applicant’s claims (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 (“Randhawa”) per Beaumont J at [21]).

4. Ground one complains that the IAA refused to accept that the applicant was a minority Tamil who had suffered harm from the Sri Lankan authorities in the past.

5. As is plain from the IAA’s decision, it accepted that the applicant was a Tamil who had suffered “adverse interactions” with the army, and was tortured such that it left scarring ([14] and [17] at CB 224 and CB 225).

6. The IAA did not accept that he had been detained on the third occasion in 2005 by the army. It gave cogent reasons for this finding including deficiencies in the applicant’s evidence. The IAA’s finding, and the findings that informed it, were all reasonably open on what was before it ([18] – [19] at CB 225).

7. Ground two asserts that the IAA made its decision with an improper exercise of power because it rejected the applicant’s “main claims” of his previous assistance to the LTTE and his history with the army.

8. The IAA accepted that the applicant had provided assistance to the LTTE in the past, and that he had had frequent adverse interactions with the army ([17] at CB 225).

9. However, the IAA did not accept that the applicant had assisted the LTTE when he lived in Colombo from February 2006 to January 2008. The IAA gave reasons for this and made findings which were reasonably open to it on what was before it ([20] at CB 225).

10. Ground three asserts that the IAA did not accept that he was suspected by the Sri Lankan authorities to be an LTTE member or supporter when he left Sri Lanka.

11. The IAA did accept that at times in the past the applicant had suffered harm because he was suspected of being an LTTE member ([17] and [21] at CB 225 and CB 226).

12. However, the IAA did not accept that the Sri Lankan authorities, as from 2007, suspected him of being a member or supporter of the LTTE. The IAA found that he was not considered to be a member of the LTTE when he left Sri Lanka in 2012 ([44] and [46] at CB 230 and CB 231). The IAA’s findings were all reasonably open to it on what was before it. It gave cogent reasons probative of the evidence.

13. Ground four asserts that the IAA “disregarded” his claims that he would be targeted by the Sri Lankan authorities on return.

14. What the applicant’s ground fails to understand is that the IAA is not obliged to uncritically accept what an applicant claims (see Randhawa per Beaumont J at [21]). The statutory task for the IAA was to consider the applicant’s claims and make findings of fact, cogently and logically probative of the material before it.

15. In the current case, the IAA gave extensive consideration to the applicant’s claim in this regard, and specifically that he would be targeted by the Sri Lankan authorities because of his claimed involvement with the TNA (Tamil National Alliance), his ethnicity as a Tamil, the imputed links with the LTTE, his scars, his being a male, and his status as a failed asylum seeker who departed Sri Lanka illegally ([40] – [79] at CB 229 to CB 237).

16. All of the IAA’s findings in this regard were reasonably open to the IAA on what was before it. Importantly, the IAA gave cogent reasons to explain its findings.

17. Ground five asserts that the IAA “used excessive authority” in not finding that the applicant’s claims as set out in his statement of claims led to his meeting the criteria for the grant of the visa.

18. The applicant did not explain the reference to “used excessive authority”. Although it may be what was meant was that the IAA exceeded its authority, which, in appropriate circumstances, may reveal jurisdictional error.

19. This is not such a case. As set out above, the IAA extensively considered the applicant’s claims, as set out in his statement of claims given to the Minister’s department, and as they were subsequently explained.

20. None of the grounds of the substantive application reveal requisite merit such that the interests of justice call for the reinstatement of the applicant’s substantive application. There was nothing from the applicant’s counsel to indicate that the applicant now, with legal advice, was contemplating any amendment to these grounds, or that there was otherwise any indication of legal error in the IAA’s decision.

Conclusion

1. In all the circumstances the AIC should be dismissed. I will make that order.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  17 December 2019