ELM17 v Minister for Immigration
[2020] FCCA 1597
•18 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELM17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1597 |
| Catchwords: MIGRATION –Application for reinstatement of judicial review proceedings – no arguable case – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 AHN17 v Minister for Immigration [2018] FCA 1598 |
| First Applicant: | ELM17 |
| Second Applicant: | ELN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2287 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 17 February 2020 and 19 March 2020 |
| Date of Last Submission: | 19 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 18 June 2020 |
REPRESENTATION
| The First and Second Applicants appeared In Person. |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $1,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2287 of 2017
| ELM17 |
First Applicant
| ELN17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Overview
This is an interlocutory application for reinstatement of judicial review proceedings that were dismissed by a Registrar on 27 June 2018, as a result of the failure of the applicant to attend court on that day for the directions hearing listed.
The applicant has filed an affidavit in support of the reinstatement application dated 7 February 2020, setting out the reasons that she relies upon, including:
3. I WAS TRYING TO GET CONNECTED WITH MY LAWYER I PAID TO GIVE ME ASSISTANCE AND GUIDE ME FOR THE PROCEEDING BUT HE DID NOT RESPOND TO ME AND REPRESENT TO PRESENT MY CASE AT PROCEEDING.
4. THE REASON I COULD NOT ATTEND WAS BECAUSE OF FEAR TO UNDERSTAND THE ORDERS AND HAD NOBODY TO HELP ME, THE LAWYER AT VERY LAST MINUTE MADE MY CONDITIONS BEING STRESSFUL AND UPSET. I THAN DID NOT KNOW WHAT TO DO AND GET ADVICE FROM AND ENDING UP BEING UNLAWFUL RESIDENT AGAIN.
The first respondent opposes the reinstatement of the application.
Background
On the previous occasion when this matter was before the court, on 17 February 2020, the applicant provided some evidence indicating that she had paid money to a solicitor who did not appear on her behalf on that occasion.
The matter was adjourned to enable the applicant the opportunity to obtain advice and to allow the Minister the opportunity to consider whether the solicitor should be referred to the Office of Legal Services Commissioner in New South Wales.
On this occasion the applicant has appeared by telephone with the aid of an interpreter arranged by the court. The applicant has not obtained another solicitor to assist her in these proceedings.
The original application for judicial review was filed on 23 October 2017 seeking review of a decision of the Administration Appeals Tribunal (‘the Tribunal’) made on 19 September 2017. That decision affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The second applicant is the husband of the first applicant and relies upon her application as a member of her family unit.
The applicants are citizens of Malaysia and claim to fear harm from a loan shark if they were required to return to Malaysia. Their claims are summarised at paragraphs [10], [12] and [13] of the Tribunal decision, as follows:
10. The information before the Tribunal supports that the applicants are husband and wife. The husband applicant previously made an application for a protection visa which was found to be invalid. The main applicant's claims for protection refer back to the written claims of her husband. These are summarised as follows:
·Her husband borrowed money from a loan shark to pay rent.
·They were unable to repay the loan.
·Her husband was threatened to be beaten and he received threats that she would be raped.
·The Malaysian authorities will not help as there is no evidence.
12. The first named applicant stated that she and her husband are afraid of a loan shark because they were unable to pay back the money she borrowed. She said the loan shark threatened them and destroyed items in her shop. She said the loan shark intimidated the customers and they could not continue trading. She stated that it was she who took out the loan and while she cannot remember the exact date it was about five or six months before their departure from Malaysia. She said she took out the loan because her business was not doing well but they also used some of the money to come to Australia. She said her friend introduced her to the loan shark and she borrowed 30,000 ringgit without her husband's knowledge. She does not know the name of the loan shark. She said that she does not have a copy of the loan agreement as the loan shark kept it. She said that she was unable to make any repayments before departing Malaysia as the shop was not making any money. When asked how much the repayments were to be she said she did not know. As to whether she has made any repayments since being in Australia she said she has not kept a record of the repayments and therefore doesn't know exactly how much she has repaid. She then added she thinks there might be 20,000 ringgit yet to be repaid.
13. The second named applicant confirmed that his wife took out a loan from a loan shark whom she met through her friend. He said he only found out about the loan about six months before they departed Malaysia. He does not know the identity of the loan shark. The amount borrowed was 60,000 ringgit but he does not know what agreement was reached in relation to repayment instalments. When asked if they had managed to make any repayments before departing Malaysia he said that he gave money to his wife but he doesn't know if she made any repayments to the loan shark. He then changed his evidence, stating that he knew she had paid back at least a small amount before they departed. As to whether any repayments have been made since their arrival in Australia the second named applicant stated that he gives money to his wife but he doesn't know how she uses it. When questioned further he said that he told his wife to divide the money between the family and the loan shark.
The Tribunal accepted that the parties were citizens of Malaysia (at paragraph [22] of the decision), but found considerable difficulties with respect to the quality of the evidence given by the applicants, noting that it was vague, inconsistent and unconvincing and that there were inconsistencies between the parties’ accounts of events. The Tribunal ultimately rejected their evidence, finding it lacked credibility, saying:
23. The Tribunal found the evidence of the applicants on the claim they owe money to a loan shark to be vague, inconsistent and unconvincing. They were unable to indicate with any precision when the loan was taken out; their evidence in respect of the value of the loan was inconsistent; they were unable to explain how the loan was to be repaid; their evidence is respect of whether any of the loan was repaid before they departed Malaysia was inconsistent and neither applicant knew how much of the loan has been repaid since their arrival in Australia. The Tribunal considers it reasonable to expect that persons in this position would have more familiarity with the loan which they claim leads them to fear harm on return to their country. The applicants' evidence in respect of past harm to the first named applicant was also inconsistent with the first named applicant stating she was never personally attacked and the second named applicant claiming his wife was once physically hit by the loan shark's people. When given the opportunity to respond to these concerns in writing as requested, the applicants did not do so. The Tribunal is also concerned that the first named applicant conceded at hearing that certain of the information contained in the written application form was fabricated on the advice of a friend. The Tribunal considers these matters reflect poorly on the applicants' credibility.
24. Furthermore, the applicants claim that the first named applicant was threatened with rape and yet, after the first named applicant obtained a passport on 16 November 2015 with the expressed intention of coming to Australia, they delayed their arrival to Australia until 15 January 2016. The Tribunal notes the first named applicant's response that it was difficult for her to leave her children but does not consider this adequately explains the delay in departing Malaysia given the serious nature of the claimed threat against her.
25. Having carefully considered the applicants' written and oral evidence and their responses to matters raised with them at hearing, and for the above reasons, the Tribunal is not persuaded that the applicants' claims in respect of a debt to a loan shark can be believed. The Tribunal does not accept that the applicants are indebted to a loan shark in Malaysia as claimed or that they received threats and/or were ever attacked by a loan shark or forced to close their business as a result of threatening behaviour from a loan shark.
The Tribunal went on to consider whether or not economic hardship may provide a basis for granting a protection visa, noting that the parties said that they would find it difficult to gain employment in Malaysia. The Tribunal considered the level of schooling that the applicant’s had achieved and accepted that the first applicant had run a business as a catering service in Australia: see paragraph [29] of the decision. The Tribunal was satisfied that the applicants would be able to derive an income if they were to return to Malaysia, as they had been able to in the past: see paragraph [30] of the decision.
Ultimately, the Tribunal concluded that the applicants did not satisfy the criteria for a protection visa under the Migration Act 1958 (Cth) (‘the Act’), and therefore refused the application, affirming the refusal of the delegate to grant the visa.
In determining whether or not to reinstate an application, I have regard to the decision of MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 where Ryan J said:
7. In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(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 assuaged 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. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement
I also note the comments of McKerracher J in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 where his Honour said (at paragraph [42]):
42. It is true that the primary judge did not expressly consider prejudice and delay and that the absence of these factors might weigh in favour of the applicant. It is true that the focus was on the merits. But, in my view, this does not disclose error for a number of reasons. First, the unfettered statutory discretion in the rule should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list even though all of the factors may be relevant. Secondly, in other cases on the same topic prejudice is not mentioned as a factor: see, for example, MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 per North J (at [18]). Thirdly, prejudice is always relevant when raised, but is never likely to be raised in these cases by the Minister as there will be no immediate prejudice and as a model litigant can be expected to concede this point. (This was exactly the position discussed in MZYEZ by Ryan J (at [13]).) Fourthly, the absence of specific reference to delay or prejudice does not mean they were not considered and considered in a manner that was favourable to the applicant. Fifthly, the key consideration in most, but not necessarily all, of these cases will be the apparent strength of the merits: is there any point in reinstatement? In my view, while I may have accorded greater weight to the explanation for non-appearance, nothing in the process of analysis by the primary judge departed from well-established principles in cases such as MZYEZ. The exercise of discretion has not miscarried.
Grounds for Review
The applicant set out four grounds in her original application filed on 24 October 2017, which are as follows:
1. The Tribunal failed to consider many vital integers of my case;
2. The Tribunal failed to consider many vital evidence that are relevant to my case;
3. The Tribunal deprived me of procedural fairness;
4. The Member has failed to do his duty
In her application to reinstate the proceedings, the applicant said she would file an amended application with further particulars, however, none was forthcoming. I turn then to consider the nature of the grounds that she has set out in documents filed in these proceedings.
Ground One
Ground 1 of the application is that “the Tribunal failed to consider vital integers of my case”. When asked at the hearing before me, the applicant was unable to articulate what, if any, integer or issue there was that the Tribunal had failed to refer to or deal with.
It appears that the Tribunal has dealt with the matters that were raised before it. The applicant has not raised any arguable case on this ground.
Ground Two
Ground 2 provides that, “the Tribunal failed to consider many vital evidence that are relevant to my case”. The applicant has not provided any documents or other evidence that was said to have been given to the Tribunal, nor did the applicant point to anything in the Court Book that was said to have been overlooked by the Tribunal. I also asked the applicant to identify whether there were documents or evidence that was yet to be produced. The applicant effectively made submissions that were requesting a review of the case on its merits and did not identify any evidence not considered by the Tribunal.
It does not appear that there is anything in the applicant’s material or submissions that would indicate an arguable case under this ground.
Ground Three
The third ground alleges that the Tribunal deprived the applicant of procedural fairness. Again, this ground was argued on the misguided basis that the purpose of this hearing was a merits review.
The applicant also submitted that the Tribunal were told of the debts that she had at home and claimed that the Tribunal failed to investigate her allegations, in order to determine whether they were true or false.
It is apparent that the Tribunal did not have an obligation to make investigations and it was open to them to determine the matter based upon the material put forward by the applicant. The applicant raised no procedural fairness point that showed any arguable case.
Ground Four
Ground 4 alleges that the Tribunal member “failed to do his duty”, but no particulars were provided and the applicant was unable to articulate from the bar table what it was that this ground was meant to refer to, or what this ground even meant to her.
There is nothing before me to indicate any failure of the Tribunal member to carry out his obligations or duties. The applicant has not shown an arguable case under this ground.
Conclusion
Having considered the grounds that the applicant set out in her application, her arguments relating to those grounds and submissions generally, it does not appear to me that the applicant has any arguable case to present to the court. The explanation for her failure to attend on the previous occasion is not particularly satisfying, however, had I concluded that she had an arguable case it appears to me that it would have been appropriate to reinstate the application. As the applicant has not established any arguable case, there is no point to a reinstatement of the present application before the court.
In the circumstances, I therefore dismiss the application.
Costs
As the applicant has been entirely unsuccessful, it is appropriate that costs follow the event and the costs sought by the Minister in the sum of $1,500.00, which is less than the scale fee. I therefore find that this is a reasonable amount and order that the applicant pay the Minister’s costs fixed at $1,500.00.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 18 June 2020
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