Ecu19 v Minister for Immigration

[2020] FCCA 1794

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECU19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1794

Catchwords:
MIGRATION – Application in a Case seeking reinstatement of a show cause application which had been dismissed for non appearance – lack of merit in show cause application – reinstatement refused.

Legislation:

Migration Act 1958 (Cth), ss.438, 476

Cases cited:

Minister for Immigration v Ahmed (2005) 143 FCR 314

Minister for Immigration v Singh [2016] FCAFC 183

Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
MZAFZ v Minister for Immigration (2016) 243 FCR 1
Wu v Minister for Immigration (1994) 48 FCR 294
WZAVW v Minister for Immigration [2016] FCA 760
Yilmaz v Minister for Immigration (2000) 100 FCR 495
Zubair v Minister for Immigration (2004) 139 FCR 399

Applicant: ECU19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2729 of 2019

Judgment of: Judge Driver

Hearing date: 2 July 2020

Delivered at: Sydney

Delivered on: 2 July 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Mr J Pipolo of Mills Oakley by telephone

INTERLOCUTORY ORDERS

1. The Application in a Case filed on 26 June 2020 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2729 of 2019

ECU19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an Application in a Case filed on 26 June 2020.  The application seeks reinstatement of a show cause application which had been filed on 22 October 2019.  The show cause application was dismissed on 29 May 2020 on account of the failure of the applicant to appear.  The reinstatement application is supported by an affidavit filed on the same day.  I received the first six paragraphs of that affidavit as a submission.  Only the seventh paragraph bore directly upon the reinstatement. 

2. The applicant stated that he missed the hearing date of 29 May 2020 because he had a phone problem.  The applicant was cross-examined on his evidence.  He stated that he was working in a semi-rural location near Canberra on the day of the hearing.  Mobile phone reception was poor.  He was unable to make a call out from that location.  The applicant accepted that he was in the same location when the show cause hearing was initially commenced on 12 May 2020.  The show cause hearing listed on that day was adjourned in part because the applicant lacked necessary documents and also because of the poor telephone reception.  The applicant stated that he was unable to locate a landline to call on the day of the resumed hearing.  He stated that he is being assisted by a migration agent and asked the agent for assistance later. 

3. The applicant conceded that the resumed hearing on 29 May 2020 had been selected after discussion with him at the initial hearing on 12 May.  The applicant apparently lives in Sydney, but appears to travel to the Canberra region regularly for work.  He is not working today, but called from Canberra.  In my view, the circumstances, as explained by the applicant, do not warrant a reinstatement of the application.  The applicant knew, from the initial hearing on 12 May 2020, that there were phone reception problems at his workplace.  After discussion on that day, he agreed to the resumed hearing on 29 May.  He could have asked for a different day, when he would not be working or not working at that location. 

4. While I accept that the applicant did have telephone problems on 29 May, they could, and probably should have been anticipated, and the applicant should have sought to have made other arrangements. 

5. Even if I had been persuaded that the applicant’s explanation for his failure to appear was satisfactory, and I am not so persuaded, I would still have declined to reinstate the application.  That is because the show cause application does not raise a serious question to be tried.

6. The applicant raises four very general grounds of review:

   Jurisdictional errors were made by the Tribunal.

   1. Tribunal considered irrelevant facts and made adverse decision against me.

   2. Tribunal did not properly consider evidence in support of my claims.

   3. Tribunal did not properly consider that I would be harmed if I return to China.

   4. The delegate did not disclose all relevant documents to me.

7. The Minister’s submissions address those grounds.  I agree with those submissions.  First, none of the grounds pleaded can succeed in the absence of any particulars to give them meaning. This omission alone is a sufficient basis for each of the grounds to be rejected and the judicial review application to be dismissed.[1]

   [1] WZAVW v Minister for Immigration [2016] FCA 760 at [35]

Grounds 1 and 2

1. The first two grounds cannot be made out. It is not explained or apparent how the Tribunal considered any “irrelevant facts” or how any supporting evidence was not properly considered. To the contrary, the Tribunal’s decision record indicates that it gave express consideration to all of the applicant’s evidence. The Tribunal accurately summarised the applicant’s written claims,[2] his supporting documents[3]and set out throughout its decision the oral evidence he provided at the hearing.[4]

   [2] at Court Book (CB) 178, [4]

   [3] at CB 179, [5], [8]-[9]

   [4] see CB 179, [7]

Ground 3  

1. The third ground is not a proper ground of review and has no proper basis. The Tribunal expressly considered all of the evidence before it and also considered country information that was relevant to the applicant’s claims.[5] In the absence of any particulars, this compliant appears to be no more than an expression of disagreement with the Tribunal’s factual findings and invites the Court to undertake impermissible merits review.[6]

   [5] see CB 181, [20]-[21]

   [6] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272

Ground 4

1. The fourth ground also cannot be made out. The applicant fails to identify which documents were not disclosed to him by the delegate. In any event, this Court has no jurisdiction to review the delegate’s decision under s.476(2)(a) of the Migration Act 1958 (Cth) (Migration Act) as it is a “primary decision” as defined in s.476(4). Further, if the Tribunal’s decision itself is not flawed, it would cure any defects and irregularities in the delegate’s decision (although no such defects or irregularities are apparent).[7]  In all the circumstances, this ground cannot succeed.

   [7] Wu v Minister for Immigration (1994) 48 FCR 294; Yilmaz v Minister for Immigration (2000) 100 FCR 495; Zubair v Minister for Immigration (2004) 139 FCR 399 and Minister for Immigration v Ahmed (2005) 143 FCR 314

2. As is noted in the Minister’s submissions, the Tribunal’s decision is also affected by several non-disclosure certificates.  Those certificates are discussed in the Minister’s submissions.  I agree with those submissions.

The first certificate

1. The first certificate dated 27 July 2016 was issued under s.438(1)(b) of the Migration Act in respect of folios 44-46 of the Minister’s Department’s file comprising email correspondence from the applicant’s employer that confirmed the applicant was one of two crewmates who did not return to his ship when required. The first certificate states that the information in the folios relates to an internal working document and business affairs; was given to a Departmental officer in confidence or contains information about a third party; and should not be disclosed as it contains documents affecting personal privacy.[8]

   [8] Supplementary Court Book (SCB) 1-4

2. The Tribunal did not refer to the first certificate and it is not apparent that it was put to the applicant in any form. In any event, even if the existence of the first certificate had been disclosed to the applicant, it could not have realistically made any difference to the Tribunal’s decision. The applicant does not dispute that he abandoned his employer’s ship. Rather, he disclosed this himself in his protection visa application.[9] Further, the same material was covered by a valid certificate (i.e., the second certificate) which the Tribunal did notify the applicant about and also afforded him an opportunity to comment on it, including on the substance of the information it purported to cover.[10] In such circumstances, the failure to disclose to the applicant either the existence of the first certificate or the subject documents does not reveal any error.

   [9] see CB 39

   [10] see CB 179, [11]

The second certificate

1. The second certificate dated 31 August 2016 was issued under s.438(1)(a) of the Migration Act also in respect of folios 44-46 of Minister’s Department’s file CLF2015/23546 and states that the information in the folios was given to a Departmental officer in confidence or contains information about a third party; and should not be disclosed to the applicant or their representative because it contains documents affecting personal privacy.[11]

   [11] SCB 5

2. The Tribunal expressly disclosed the existence of the second certificate to the applicant and he was provided with an opportunity to make submissions on its validity.[12]  The matter is distinguishable from MZAFZ v Minister for Immigration[13] and Singh as the Tribunal disclosed the existence of the certificate and described the types of documents covered and explained to the applicant that it did not consider the information adverse.[14]

   [12] see CB 179, [11]; Minister for Immigration v Singh [2016] FCAFC 183 at [41]-[52]

   [13] (2016) 243 FCR 1

   [14] CB 179-180, [11]

The third certificate

1. The third certificate dated 31 August 2016 was issued under s.438(1)(a) of the Migration Act in respect of folio 47 of the Minister’s Department’s file CLF2015/23546 comprising a screenshot of a Departmental database containing the applicant’s identity details.[15]  The third certificate states that disclosure of the information would be contrary to the public interest because it relates to an internal working document and business affairs.

   [15] SCB 6‑7

2. The Tribunal disclosed the existence of the third certificate to the applicant and that it did not consider it valid because it related to internal working documents and business affairs and did not consider that this was sufficient basis to warrant non-disclosure due to public interest. The applicant noted this without comment.[16]

   [16] CB 179, [10]

3. An invalid certificate could only result in jurisdictional error if the incorrect and invalid notification was material, in the sense that it deprived an applicant of a successful outcome.[17]  The certificate covered an internal document that listed the applicant’s identity details.[18]  The applicant’s identity was never in issue, and it is not apparent how any incorrect or invalid notification was material in the sense that it could have deprived the applicant of a successful outcome.

   [17] Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3 at [3]

   [18] see SCB 7

Conclusion

1. I conclude that the applicant has not established any persuasive reason for the reinstatement of his show cause application.  

2. I will order that the Application in a Case filed on 26 June 2020 is dismissed.

3. In consequence of the dismissal of the Application in a Case, the Minister seeks an order for costs, fixed in the sum of $500.  Those costs are additional to that which I awarded on 29 May 2020.  The applicant did not wish to be heard on costs.

4. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $500.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 7 July 2020