Elp18 v Minister for Immigration

[2020] FCCA 647

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELP18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 647

Catchwords:
MIGRATION – Application for a Protection (Class XA) visa – whether the Tribunal complied with its statutory obligations – whether the Tribunal’s decision was legally unreasonable – no jurisdictional error made out – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 441C, 476

Migration Regulations 1994 (Cth), reg.4.35D

Applicant: ELP18

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2405 of 2018

Judgment of: Judge Street

Hearing date: 20 March 2020

Date of Last Submission: 20 March 2020

Delivered at: Sydney

Delivered on: 20 March 2020

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms M Donald
Sparke Helmore

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 20 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2405 of 2018

ELP18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 August 2018 dismissing the application for review made on 1 August 2018 for want of appearance of the applicant.

2. These proceedings were commenced on 29 August 2018. On 11 February 2020, this Court made orders fixing the matter for a show cause hearing today.

3. At the commencement of the hearing, the Court explained to the applicant the basis of the show cause hearing.

4. From the bar table, the applicant indicated that he had lost his court book and he wanted an adjournment so he could further prepare the matter. No evidence was adduced by the applicant in support of the adjournment application.

5. These proceedings were commenced in August 2018. The applicant has had ample time to prepare the matter if there was, in fact, any material that the applicant could adduce that would be relevant to establishing the relevant error. The applicant was given an opportunity to do so by orders made by a Registrar of the Court on 20 September 2018. No such documents were filed pursuant to that opportunity.

6. When the Court made orders fixing the matter for a show cause hearing, this Court gave the applicant a further opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

7. The applicant indicated that he had a relative in India who was suffering from the coronavirus and that he was stressed and wanted more time to prepare. The Court takes into account the want of merit in the substantive application.

8. The applicant’s request for more time does not identify any proper basis upon which an adjournment should at this stage be granted. The Court is not satisfied that there would be any utility in granting an adjournment. The adjournment was opposed by the first respondent. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice. It is for these reasons the Court made the order declining the oral application for an adjournment.

9. No submissions were advanced by the applicant from the bar table as to why the Tribunal’s decision was the subject of any reasonable argument of error.

10. The grounds in the application are as follows:

    1. During the processing of Protection Visa, Mr [ELP18] is denied natural justice to provide response and supporting evidence. His evidences for Protection were not considered fairly and a subjective decision was made that denied a fair outcome on the visa application

    2. At time of hearing Mr [ELP18] was emotionally so devasted that he could not gather courage to appear for the hearing even though he had made up his mind to do so. [ELP18] had informed the AAT on 4th July 2018 that he would attend the hearing. The visa process and the tribunal hearing pressure has taken a toll on [ELP18] and he is unable to face any Authorities confidently.

    3. [ELP18] points out that he was always made to feel wrong even though his protection claims were true.

    4. Consideration must be given to individual circumstances rather that what is available publicly. A person must have the right to put forward his situation which is truly affecting his well-being and state of mind in a big manner.

    5. Consequently, the delegate decided to refuse the application for the visa on 29 Oct 2015. The basis of the decision was that the protection claims made by applicant were not meeting the regulatory requirements.

    6. The applicant applied to the Tribunal for review of the delegate's decision.

    7. On 29 Jun 2018, the Tribunal wrote to the applicant inviting him for the hearing on 31 July 2018 and requested to provide any more available information in relation to his review application.

    8. On 04 July 2018, the appellant responded to the hearing request from AAT. The applicant also requested an interpreter in Hindi. This goes to show that the applicant did intend to attend the hearing.

    9. But the concern is that the appellant was so devasted with the complete law process and the way his application was dealt until now that he cannot gather courage to attend the hearing.

    10. The AAT tribunal must have considered the facts of the case that were available with them on his file. Rather the decision of AAT was based on Non-attendance of hearing. This is error of law.

    11. The applicant has his family in India. But there is threat to his life that is stopping him from to that country. The Department of Immigration AND Border Protection (now Department Of Home Affairs) must consider this situation and give [ELP18] a fair chance.

    12. These are the enough evidences which should have been considerable weightage by the Tribunal Officer and the applicant now is requesting the Federal Court to consider his point and give him another opportunity to prove his point with substantial evidences.

    13. The applicant has evidences to prove his claim for protection which can be submitted to the court.

    14. The applicant is now applying to the Federal Circuit Court for judicial review of the Tribunal's decision. The DIBP and AAT have erred by not allowing the applicant and appellant to provide supporting statements / evidences.

    15. The AAT has also erred in not considering the facts and evidences which could have met the visa requirements. The AAT has erred in its decision which is based on the non-attendance to hearing. Rather the decision must be based on meeting visa requirements which was evidenced in the documents sent with the visa application.

11. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the invitation sent to the applicant on 29 June 2018 inviting the applicant to appear before the Tribunal on 31 July 2018. The relevant invitation complied with the requirements of sub-ss 441A(5)(b) and 425A(3) of the Act and reg 4.35D of the Migration Regulations 1994 (Cth). The invitation advised the applicant of the effect of s 426A of the Act and met the requirements of sub-s 425(1) of the Act.

12. The applicant responded to the invitation to attend the hearing. The Tribunal also sent the applicant SMS reminders. In those circumstances, it was open to the Tribunal, acting reasonably, to dismiss the application pursuant to sub-s 426A(1A)(b) of the Act on 1 August 2018 without consideration of the information the subject of the application for review.

13. The Tribunal notified the applicant of the dismissal decision in accordance with the statutory requirements and the applicant was taken to have received an email notification on 1 August 2018 pursuant to sub-s 441C(5) of the Act. No application for reinstatement was brought by the applicant. In those circumstances, the Tribunal was bound to dismiss the application given the failure to seek any reinstatement within the time identified.

14. Grounds 1, 4, 10, 14 and 15 assert that there was a denial of natural justice because the applicant was not given an opportunity to comment and provide evidence. The applicant was given such an opportunity by the invitation sent to the applicant and the hearing at which the applicant failed to appear. No arguable case for relevant error arises by reason of those grounds.

15. Grounds 2, 3, 5, 6, 7, 8 and 9 reassert the applicant’s claims and background and his personal devastation. None of those grounds identify any arguable case of relevant error by the Tribunal.

16. Grounds 11, 12 and 13 all seek impermissible merits review. As the applicant was validly invited to attend the hearing under s 425 of the Act, the Tribunal’s powers under s 426A(1A) of the Act were enlivened and there was no legal unreasonableness in the circumstances of this case where the applicant failed to appear in the Tribunal dismissing the application.

17. As the applicant did not seek reinstatement within the time identified in the notification of that dismissal, the Tribunal was bound to confirm the dismissal decision. Accordingly, these proceedings were doomed to failure.

18. The application has not raised an arguable case for the relief claimed. The Court is satisfied it is an appropriate matter in which to exercise the Court’s powers under r tre://ftr/?label="FCA-SYD-TTC1L9"?datetime="20200320114457"?path="\\isilon-nextdc\Fca\FCA\20200320\FCA-SYD-TTC1L9"?Data="5f9a0568"44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding eighteen (18) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 20 March 2020 and the parties were provided sealed copies of the Court’s orders.

Associate:

Date: 30 April 2020