ENL19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 425
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ENL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 425
File number(s): ADG 454 of 2019 Judgment of: JUDGE BROWN Date of judgment: 25 May 2023 Catchwords: MIGRATION – Judicial review of Administrative Appeals Tribunal decision – protection visa – citizen of Malaysia –where application was dismissed for non-appearance at callover – application for reinstatement filed 89 days after dismissal – assessment of reasons for non-appearance – explanation for delay in seeking reinstatement – overall merits of case – applicant asserts he participated in political demonstrations in Malaysia – grounds for review do not delineate any jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5H, 5J 36, 65, 474
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 13.06, 17.05
Cases cited: Craig v South Australia (1995) 184 CLR 163
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 10
Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re: Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407
SZNXA v Minister for Immigration & Citizenship [2010] FCA 775
SZUFS v Minister for Immigration & Anor (No2) [2015] FCCA 545
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 10 May 2023 Place: Adelaide Applicant: Appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms M Pappas, The Australian Government Solicitor Solicitor for the Second Respondent: Submitting notice filed, save as to costs ORDERS
ADG 454 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ENL19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
25 May 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed 14 November 2022 is dismissed.
2.The applicant pay the First Respondent’s costs fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).
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 BROWN:
INTRODUCTION
These reasons for judgment centre on an application for reinstatement of a judicial review proceeding, which was dismissed by a registrar of the court on 17 August 2022, as a consequence of the non-appearance of the applicant concerned.
In general terms, rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021,[1] authorises the court to dismiss an application, when an applicant to the relevant proceeding is absent from a hearing.
[1] Hereinafter referred to as “the Rules”.
The proceedings, sought to be reinstated, arise from an application for judicial review of a decision of the Administrative Appeals Tribunal,[2] made on 31 October 2019, not to grant the applicant a protection visa[3] pursuant to the provisions of section 65 of the Migration Act 1958 (Cth).[4]
[2] Hereinafter referred to as “the AAT” or “the Tribunal”.
[3] Hereinafter referred to as “the Visa”.
[4] Hereinafter referred to as “the Act”.
The application for reinstatement was filed on 14 November 2022. The grounds provided for the applicant’s failure to appear as follows:
The first application dismiss because of my mistake to understand the order to attend hearing by call. That happen because I don’t understand the process and also don’t understand the english order.
I hope can be another hearing with interpreter in malay order and guard me to understand any step to attend hearing.
I need another chance to appeal my application.[5]
[5] See applicant’s affidavit of 19 September 2022 and filed 14 November 2022.
As is apparent, the applicant concerned does not have a sophisticated understanding of the English language and has axiomatically prepared his own application, as was the case with his original application for judicial review of the refusal to grant him protection as a refugee.
The first respondent to the application, the Minister for Immigration, Citizenship & Multicultural Affairs,[6] opposes the reinstatement on the basis that the applicant has not provided a reasonable explanation for his failure to appear on 17 August 2022 and, in any event, the decision, which he has sought to review, was not affected by any jurisdictional error.
[6] Hereinafter referred to as “the Minister”.
Pursuant to rule 17.05 of the Rules, the court is granted a discretion to set aside an order if it has been made in the absence of a party.[7] The considerations relevant to the exercise of this discretion are well established.[8] They can be summarised as follows:
·Has there been an adequate reason for the non-appearance;
·Was there any delay in making the application to set aside;
·Whether the party, in whose favour orders have been made, would be prejudiced by a new hearing, which prejudice could not be adequately compensated for by an award of costs;
·Whether there is an arguable case on the merits of the substantive application.
[7] See Rule 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021.
[8] See SZUFS v Minister for Immigration & Anor (No2) [2015] FCCA 545 at [14].
It is the submission of counsel for the Minister that the explanation provided, by the applicant, for his non-appearance and the subsequent delay in him filing the current application, are inadequate.
The evidence on which the Minister relies to support the submissions is contained in an affidavit of Maria Pappas, the solicitor for the Minister, which was filed on 22 February 2023 and which was tendered before me.[9]
[9] See Exhibit D.
PROCEDURAL CHRONOLOGY
The applicant commenced the judicial review proceedings on 15 November 2019. In his application, the applicant provided an email and postal address. The application was listed before the court initially on 22 January 2020, on which occasion it was listed for final hearing on a date to be advised.
The orders of 22 January 2020 also directed that the Minister prepare and serve a court book of all relevant documents. On 10 March 2020, such a book was served on the applicant by express post to the postal address, which he had provided on his application.
On 3 August 2022, the applicant and the Minister were each advised, by the court that the application for judicial review would be called over on 17 August 2022 at 1.45pm South Australian time.
The relevant notification, was sent to the applicant by electronic means, to the email address which he had provided on his original application and which is also the email address which he provided on his more recent application for reinstatement.
The Minister concedes that English is not the first language of the applicant. However, counsel for the Minister submits that the two weeks’ notice of the call over date and time provided the applicant with sufficient time to seek assistance in respect of interpreting the email letter in question and the information, which it contained, so that the applicant could attend as directed.
In this context, a relevant portion of the email advised as follows:
It is very important you attend the callover. If you miss the callover and do not appear by telephone, you matter may be dismissed and costs may be ordered against you.[10]
[10] See Annexure MP-7 to affidavit of Maria Pappas filed 22 February 2023.
There is no controversy between the parties that the applicant did not attend the call over in question and it was as a consequence of this non-appearance, as the emailed letter forewarned, his application was dismissed. Concurrently with the dismissal order, the Registrar made an order for costs, in the Minister’s favour, in the sum of $1,200.00.
As a consequence of this costs order, on 19 August 2022, the solicitor for the Minister sent a copy of the relevant order made on 17 August 2022 to the applicant via his electronic address. He was also provided with an invoice requiring him to pay the costs awarded against him.
THE PARTIES’ SUBMISSIONS
In these circumstances, it is the contention of the Minister that there can be no doubt that the applicant was promptly notified of the dismissal of his application by a letter forwarded to him at the electronic address which he had provided. Given what has transpired, there can be no doubt that the applicant received the relevant correspondence.
Once again, it is the submission of the Minister that the applicant failed to pay sufficient heed to this correspondence and promptly seek action in respect of the dismissal of his application, given that he did not commence the current reinstatement proceedings until 14 November 2022, which is approximately 89 days after the dismissal order.
In these circumstances, the Minister submits that even if the applicant could not read the email in question, he was able to obtain a translation of it much quicker than is explicable by the significant delay in him filing the reinstatement application in question.
The Minister concedes that it is not likely to suffer any prejudice, if the application for reinstatement is granted. However, the Minister further contends that the substantive application for review is lacking in merit.
At his re-hearing application, the applicant tendered a document headed Explanation[11] in which he set out why he should be given an opportunity to present his application for judicial review. In this document, he asserts that he does not speak English well and does not read or write in the English language. This does not seem to be controversial.
[11] See Exhibit A.
He acknowledges receiving the letter of 3 August 2022, which set the time and date for the callover. The salient paragraph of the letter read as follows:
The callover will be conducted by telephone (dial in). You must join the telephone hearing 15 minutes before it starts.
Thereafter, the relevant telephone number is provided and the applicable conference ID number, which he was required to enter on his telephone keypad. The letter further advised that he was not to hang up until his matter had been dealt with.
In addition, the applicant was also advised that, if he had requested the assistance of an interpreter in the past, an interpreter will be on the call to help you during the callover. The letter in question also provided a 1300 telephone number, which the applicant was advised he could use if he experienced any difficulty in dialling into the telephone hearing.
In his explanation, the applicant indicated that the above regime – a conference telephone call, with participants simultaneously connecting to the court via dialling in – was different to what had occurred, approximately three years earlier, when he had attended at court and taken part in a face to face hearing with the assistance of an interpreter.
In this context, the applicant asserted as follows:
After 15 minute I’m not receive any call from them, I’m try to call them back but them not answer me.
By necessary implication, it is the applicant’s position that he was under the misapprehension that the court would call him rather than vice versa.
From the Minister’s perspective, the difficulty with this submission is the lack of proactivity demonstrated on the applicant’s part thereafter, particularly the time it took him to bring the current application for reinstatement. In this context, it is submitted that the actual motivation for the application is to enable the applicant to remain in Australia and to continue to work in this country.
THE SUBSTANTIVE APPLICATION
The applicant is a citizen of Malaysia, where he was born on 17 January 1989. He arrived in Australia on 28 April 2016 pursuant to a validly issued electronic travel authority.
On 27 July 2016, he applied for the protection visa in question by means of completing a pro forma document, in which he set out the various grounds on which he claimed to be at risk of suffering persecution, if returned to Malaysia.[12]
[12] See Court Book at page 43.
His grounds for seeking protection can be summarised as follows:
·The economic situation in Malaysia is in crisis, leading to a drop in living standards and the depreciation of the ringgit;
·He had been involved in the yellow shirts protests[13] against the Malaysian government;
·Many people have been arrested and imprisoned as a consequence of taking part in these protests; and
·Although he personally had not experienced such harm in Malaysia, he feared if he returned to Malaysia, he would be imprisoned.
[13] Also known as the Bersih rallies.
On 23 March 2017, a delegate of the Minister rejected the applicant’s application for a protection visa. The delegate found that the applicant’s claim that he had taken part in protests against the Malaysian Government lacked detail. It was also noted that the relevant demonstrations had involved many thousands of individuals.
In these circumstances the delegate was not satisfied that the applicant had established that he had such a political profile, in Malaysia, that he would be actively pursued by the relevant authorities in that country, if he returned there.
As a consequence of this decision, on 24 March 2017, the applicant applied to the AAT for a review of the Ministerial Delegate. He was subsequently invited to appear and give evidence before the Tribunal on 22 October 2019. The applicant attended this hearing and, as indicated above, on 31 October 2019, the Tribunal confirmed the decision of the delegate not to grant him the relevant visa.
In order to be granted the relevant visa, the applicant must satisfy one of one of the primary criteria contained in either section 36(2)(a) or (aa) of the Act. Firstly, that he is a refugee as defined by section 5H in conjunction with section 5J or secondly the he has satisfied the complementary protection criterion on the basis that there is a real risk he will suffer significant harm if returned to Malaysia.
In respect of the criteria required to be satisfied to be considered a refugee, the relevant applicant must establish that he or she has a well-founded fear of suffering persecution, in the relevant country of origin, based on that person’s race, religion, nationality, membership of a particular social or political opinion if returned to that country. These consideration reflect the definition appearing in the Refugees Convention,[14] to which Australia is a signatory.
[14] Hereinafter referred to as “the Convention”.
In its findings, the Tribunal assessed the applicant not to be a credible witness and found his evidence to be vague, lacking in detail and inconsistent. However, the Tribunal was prepared to accept that the applicant was an ordinary member of the People’s Justice Party (PKR) although he was not able to produce a membership card and did not pay any membership fee.
As such, it was accepted that he had taken part in the Bersih 4 protests in Kuala Lumpur in August 2015. Country information available to the Tribunal indicated that these protests had been relatively peaceful when compared with the rallies of July 2011.
However, the applicant indicated that he had been involved with a group of individuals who had thrown rocks at police in retaliation for the use of pepper spray. However, whilst the applicant himself had managed to escape from the police, one of his friends had been arrested and the friend had given his name to the police.
The Tribunal asked the applicant if there was any other reason he might be known to police. In this context, he indicated that he was an associate of a person who had been arrested on drug charges in 2013 and had been required by police to give a urine sample. As a consequence the police would have his name on file.
The Tribunal also sought the applicant’s comments on why, if he was of interest to the police in August of 2015, he had been able to depart Malaysia, without incident in April 2016. Further, it was put to him that the Government of Malaysia had significantly changed in the three years since he had left the country.
The Tribunal’s findings can be summarised as follows:
·The applicant was an ordinary member of the PKR party;
·He may have taken part in the Bersih 4 rally of August 2015;
·This rally had been largely peaceful and country information indicated that low-profile individuals who took part in peaceful political rallies faced a low risk of official discrimination;
·In any event, notwithstanding his involvement in Bersih 4 the applicant had been able to depart Malaysia, without incident, in April 2016;
·It found that the applicant’s claim to have thrown rock at police at Bersih 4 and that his friend had disclosed his name to police to be vague and lacking in detail. It was significant that this claim was not in his original hand written application and the assertion that his friend, who had helped him with the application, had omitted it, was not credible;
·It was accepted that the applicant may have come to the notice of police in 2013 but he had been released without charge. As such, it was speculative that he had and would come to the notice of the police because of it;
·The Government had changed since the applicant had come to Australia in 2016 and country information indicated that he would be able to take part in peaceful demonstrations with the PKR; and
·As such there was not a real change that the applicant would suffer either persecution or significant harm, if returned to Malaysia because of his actual or imputed political opinions.
THE GROUNDS FOR JUDICIAL REVIEW
As a consequence of the decision of the AAT, the applicant sought a judicial review in this court on 15 November 2019. In this context, it must be pointed out that this court is not authorised to undertake a merits review of the decision in question, as pursuant to the provisions of section 474 of the Act it is classified as a privative clause decision.
Accordingly, this court has jurisdiction to quash the decision, by virtue of the issue of a prerogative writ if it is affected by jurisdictional error or have been made in bad faith.[15] In this context, it is important to emphasise that, in undertaking judicial review, this court is unable to examine the merits of the relevant decision under review or substitute its own findings of fact for those of the original decision-maker. As such, the court must be vigilant to avoid inadvertently transforming a process of judicial review into a re-hearing on the merits.
[15] See Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[16]
[16] See Craig v South Australia (1995) 184 CLR 163.
It would appear to be the case that the applicant prepared his own grounds of review. It is not easy to discern any specific allegations of jurisdictional error from those grounds. Rather, in his application the applicant has recapitulated the various findings of the Tribunal and indicated his disagreement with those findings. The grounds for review are as follows:
Tribunal stated that according to DFAT's report that low-profile individuals involved in peaceful political rallies face a low risk of official discrimination. This is untrue. A common report cannot be used in all cases. All case are different and all situations are different. Using a DFAT report to commonalise [sic] all situation is wrong and contributes to jurisdictional error. Also Tribunal member in judgment says agrees with few points like myself attending the political rally but states they disagree with the fact that I threw stones on police officers. Tribunal member made his findings without any substantive proofs and at random as per his will. This assumptions have no rationalised reasons. Tribunal member accepts few claims and refuses few claims without any reasons and have not mentioned any reason for accepting or rejecting the claims. There is error in Tribunal’s decision.[17]
[17] See Application – Migration filed 15 November 2019.
I acknowledge the difficulties confronting the applicant by way of his lack of English and proper legal advice. However, it is not the responsibility of either the court or the Minister to search out for some ground of review on behalf of the applicant.
In addition there is a long line of authority which directs that a court, in undertaking a judicial review of a migration decision, should not closely scrutinise the reasons of the relevant administrative decision-maker in an attempt to search for error.[18]Otherwise, there is a risk that such a judicial review will inadvertently become a reconsideration of the merits of the decision, which is not permissible.
[18] See Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 at 272.
Counsel for the Minister, in her written submissions, has attempted to summarise the applicant’s challenge to the decision, as follows:
·The Tribunal fell into error by relying on country information to characterise the Bersih rally as having been peaceful;
·The Tribunal fell into error by concluding there was no basis finding that the applicant did not throw rocks at police at this rally;
·There was no basis for the Tribunal to accept some parts and reject other parts of his evidence.
The applicant takes exception to the findings made by the Tribunal. As indicated above, it is the function of the Tribunal to examine the evidence led before and reach the conclusions, which it considers such evidence supports. That is its role. This court is not entitled to take a different view of that evidence in its judicial review function.
The same consideration apply to so-called country information. It is for the Tribunal to assess and weigh up that evidence, as it considers appropriate. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. If it is contrary to the evidence of the applicant concerned, it may also inform the manner in which the Tribunal assesses credit, in its fact finding role.[19]
[19] See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 10 at [11].
The same considerations apply to the assessment of the credibility of an applicant’s evidence. It is an aspect of the Tribunal’s role to determine facts. The Tribunal was entitled to conclude that the applicant did not throw rocks at the rally given that this was a matter, which he had not included in his original written application for protection. Similarly it was entitled to disbelieve the explanation, which he provided it for its omission, namely his friend had overlooked it.[20]
[20] See Re:Minister for Immigration: Ex parte Durairajasingham(2000) 168 ALR 407 per McHugh J at 423 [67].
In this case, in my view, the AAT identified the legal principles applicable, namely whether or not the applicant would face a real chance, attributable to a Convention reason, of facing persecution if returned to Malaysia. It concluded that he would not. In this context, the applicant does not identify any jurisdictional error which vitiates the exercise of jurisdiction.
In particular, he does not specify what is the irrelevant consideration taken into account or what aspect of his case was not considered. Rather, he asserts, in effect, that he is dissatisfied with the decision and wishes another decision to be made in its stead. Similarly, he has not identified any basis on which he asserts that the proceedings in question were procedurally unfair to him.
Rather, the grounds for review are generic and amorphous in nature which renders it difficult, if not impossible for the court to discern what are the errors attributable to the Tribunal which attracts the jurisdiction of this court. This of itself provides grounds for the dismissal of the application concerned.[21]
[21] See SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21] per Reeves J.
In my view, it was open to the Tribunal to conclude, on the basis of its various findings and the weight it elected to give to each of them that:
·There was not a real chance that the applicant would be subjected to harm if returned to Malaysia on the basis:
·He had a low political profile and, on the basis of country information, such persons, notwithstanding the fact they had taken part in anti-government rallies, faced a low risk of official discrimination;
·It disbelieved his evidence that he had thrown rocks at police;
·Notwithstanding his claims to having a profile with the authorities, the applicant had been able to leave Malaysia without difficulty;
·The political party with which the applicant had been associated in the past was now part of the ruling coalition in Malaysia.
In these circumstances, as his case is presented, it is my view that it has no realistic prospect of success and is therefore subject to dismissal, regardless of the merits or otherwise of his explanation for not attending the telephone callover.
CONCLUSIONS
The applicant represented himself at the reinstatement application. He had the assistance of an interpreter. He requested to present some documents to the court for its consideration. These documents consisted of a reference from his current employer in Australia, a primary producer; a contemporary payslip; a certificate indicating completion of a tractor proficiency course; and a letter from his orthodontist, indicating a need for on-going treatment.
These all go to the applicant’s personal sense of connection to Australia and his need to remain in this country. They are not relevant to the judicial review of the decision to refuse him a protection visa. In his written explanation to the court, the applicant indicated the following:
The reason why I open back my case, because I want to get back my visa with workright, I don’t want to be illegel [sic] in Australia. I want to do the right way.
Hopefully the courts will give another one opportunity
Im [sic] don’t have any reason and only this my explanation.
I have some documents supporting. Hopefully that document can held too stay logger [sic] at Australia. I don’t want to go back my country.
Regrettably, in my view, these sentiments, although undoubtedly strongly held by the applicant, represent a significant level of miscomprehension of the judicial review process. I acknowledge that the process adopted by the court, at the August callover, was significantly different to that which it had adopted on earlier occasions vis-à-vis both the present applicant and no doubt many others.
However, I agree with the submissions of the Minister that the onus was on the applicant to secure whatever assistance he required to translate the relevant communication, so he could take part in the relevant hearing. In this context, he had ample time to do so. In these circumstances, I do not think the process can be characterised as procedurally unfair.
Accordingly, although, there are some extenuating circumstances, I do not think the explanation for the failure to appear at the callover can be regarded as adequate. More significantly, there is a significant delay in the applicant bringing the reinstatement application. Having missed the court appearance, the onus was on the applicant to move expeditiously. He did not do so.
Most significantly of all, in my assessment, it would serve no purpose – other than giving the applicant more time to remain in Australia – for the application to be reinstated, as his grounds for judicial review are hopeless, given the findings of the relevant decision-maker.
Accordingly, in aggregate, the various considerations to which the court must have regard in respect of any application for reinstate, militate against the court utilising its discretion to grant such a reinstatement.
For these reasons, the application for the reinstatement of the proceedings must be dismissed. The first respondent seeks costs in an amount of five thousand dollars ($5,000.00), which is less than the amount prescribed by the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021. I will make an order to this effect.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 25 May 2023
1
8
0