EOD17 v Minister for Immigration
[2018] FCCA 3323
•21 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EOD17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3323 |
| Catchwords: MIGRATION – Protection visa application – application for judicial review lodged 8 minutes late – application dismissed for non-appearance – application for reinstatement – relevant principles – reasonable excuse and prejudice conceded by first respondent – legal unreasonableness considered – reasons of IAA considered – IAA’s treatment of question of applicant’s credibility arguable – application for reinstatement allowed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 Migration Act 1958 (Cth), ss.476, 477. |
| Cases cited: AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 BAL17 v Minister for Immigration and Border Protection [2018] FCA 792 BTR15 v Minister for Immigration and Border Protection [2016] FCA 892 BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76 CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 Gallo v Dawson (1990) 93 ALR 479 House v The King(1936) 55 CLR 499 Jackamarra v Krakouer (1998) 195 CLR 516 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 (2003) 198 ALR 59 Savrimootoo v Minister for Immigration and Border Protection [2018] FCA 1167 |
| Applicant: | EOD17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2178 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 9 November 2018 |
| Date of Last Submission: | 9 November 2018 |
| Delivered at: | Melbourne |
| Orders Pronounced: | 9 November 2018 |
| Delivered on: | 21 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bergin |
| Solicitors for the Applicant: | Kerdo Legal |
| Solicitor for the First Respondent: | Ms McInnes |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Order made on 13 June 2018 dismissing the application is set aside.
The application is listed for hearing on Thursday, 7 February 2019 at 11:30am.
By 4:00pm on Friday, 11 January 2019 the applicant file and serve any further amended application with detailed particulars of each ground of review and any further affidavit on which the applicant proposes to rely.
By 4:00pm on Friday, 18 January 2019 the applicant file and serve an outline of submissions not exceeding 10 pages addressing the grounds of review.
By 4:00pm on Friday, 25 January 2019 the respondent file and serve any submissions upon the grounds of review not exceeding 10 pages.
The costs of and incidental to the Application in a Case filed on 24 August 2018 and the Amended Application in a Case filed on 19 October 2018 be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2178 of 2017
| EOD17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application in a case filed on 19 October 2018, the applicant seeks an order pursuant to r 16.05 of the Federal Circuit Court Rules 2001 for the reinstatement of an application for an extension of time in which to apply for judicial review of a decision of the second respondent (IAA) dated 4 September 2017. By it’s decision, the IAA affirmed a decision of a delegate of the first respondent (Minister) to refuse the applicant a protection visa (visa).
On 13 June 2018, the application for an extension of time was dismissed for want of appearance pursuant to r 13.03C(1)(c).
These reasons explain my conclusion that the applicant was entitled to the relief sought. In substance, I was satisfied that two of the suggested grounds of review are reasonably arguable.
Background
The applicant, a Sri Lankan national aged 49 years, first arrived in Australia at the Cocos (Keeling) Islands on 8 September 2012 as an irregular maritime arrival.
By his statutory declaration made on 4 November 2013, the applicant claimed that in 1984, his father was killed by persons believed to be Sri Lankan army soldiers. The applicant contemplated joining the LTTE in revenge and told the Grama Sevaka (or local village leader) of his intention to do so. The applicant further claimed that in 1986 he was arrested, detained, interrogated and tortured and afterwards spent 18 months in jail. He claimed that after he was released from jail, he was required to report every two months and that he was interrogated.
In 1997, the applicant left Sri Lanka for Qatar where he remained until 2002. The applicant returned to Sri Lanka in 2002 where he was harassed by the Karuna Group. In 2005, he returned to Qatar. In 2012 the applicant was located in Qatar by a group of people whom he believed to be Sri Lankan army personnel and who came to his workplace looking for him. The applicant claimed that he then returned to Sri Lanka in 2012 where he received a call threatening harm if he returned to Qatar. In May 2012, Tamil men speaking Sinhala came to the applicant’s house while he was at work. After that, the applicant said that he had kept a low profile in Sri Lanka.
The applicant claimed to fear harm by the Karuna Group, the CID and SLA due to his previous detention.
On 13 July 2015, a solicitor and migration agent lodged an application for a Safe Haven Enterprise visa on behalf of the applicant.
On 13 October 2015, the applicant was invited by the Department of Immigration and Border Protection to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa.
The applicant made a further statutory declaration on 10 July 2016.
On 5 December 2016, the applicant was invited to attend an interview on 23 December 2016 to discuss his application and claims. He did so.
On 20 March 2017, the delegate refused the application for a Safe Haven Enterprise visa. The Department provided a detailed decisional record.
On 23 March 2017, the applicant was notified that the delegate’s decision to refuse the protection visa application had been referred to the IAA for review.
On 4 September 2017, the IAA notified the applicant that it had made a decision to affirm the decision under review. The applicant was provided with a copy of the IAA’s reasons for its decision (Reasons).
IAA decision
For the purposes of the present application, I adopt and distil the respondent’s summary of the IAA’s decision as follows:
(a)the IAA accepted the applicant to be a Sri Lankan Tamil of Christian faith;
(b)both the delegate and the IAA accepted that the Sri Lankan army had shot the applicant’s father, that the applicant had told the Grama Sevaka that he wanted to join the LTTE, and that the applicant was arrested in 1986;
(c)however, unlike the delegate, the IAA did not accept that the Grama Sevaka was an informant to the authorities. Nor did it accept the applicant’s claims of torture whilst he was detained. The IAA also noted a number of inconsistencies in the applicant’s evidence and did not accept the applicant’s claims:
(i)of harassment and violence against him by the army and police;
(ii)that he had been refused a passport due to his prior imprisonment;
(iii)of harassment by the Karuna group between 2002 and 2005 when he was operating a trucking business;
(iv)to have been followed for three years by the CID without the CID doing more than detaining him for more than 1 to 2 days; or
(v)of being pursued by the CID in Qatar.
(d)furthermore, the IAA noted that although Tamils suspected to be associating with the LTTE could be subject to serious harm, it found that there was no real chance of the applicant suffering any harm because he was released from detention and was of no interest to the authorities;
(e)despite country information indicating that the applicant would be charged, bailed and fined upon his return from Australia to Sri Lanka, concluded that the applicant would not face serious harm, was not a refugee and for like reasons, was not owed complementary protection.
Procedural history
By application filed on 9 October 2017, the applicant sought judicial review of the IAA’s decision. The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the decision of the IAA made on 4 September 2017.
By his application, the applicant sought an extension of time pursuant to s 477 of the Act in which to file his application for judicial review. The application for an extension of time was necessary because the application for judicial review had been lodged eight minutes outside of the 35 day time limit prescribed for lodgement.
On 9 October 2017, the applicant’s solicitor made an affidavit in support of the application to which was exhibited a copy of the IAA decision record but which did not otherwise adduce any evidence in support of the application for judicial review.
By a Response filed on 30 January 2018, the Minister sought that the application be dismissed on the grounds that it was not affected by jurisdictional error and had no prospects of success.
The Notice of Filing and Hearing stated that the Time and Date for Hearing was 13 June 2018 at 10:00 AM. As noted above, the application for an extension of time was dismissed for want of appearance.
On 24 August 2018, the applicant filed an application in a case for reinstatement which was supported by an affidavit sworn by the applicant’s solicitor deposing that due to a series of administrative errors there was no attendance at the directions hearing.
An amended application in a case for reinstatement was filed on 19 October 2018 together with a further affidavit affirmed by the applicant’s solicitor. The affidavit provided some greater clarity as to the circumstances in which the application had been dismissed.
At the commencement of the hearing, counsel for the applicant (who had been retained at short notice) submitted that the grounds of review contained in the application should be replaced by other grounds which had been reduced to writing in draft form. A copy of the proposed amended application was provided to the court and had been provided to the respondent only shortly prior to the hearing. In those circumstances, the hearing was adjourned to the following day.
I considered the application for reinstatement by reference to the proposed amended grounds of review.
Reinstatement
Where an applicant does not appear at a hearing, the Court may dismiss the application: r 13.03C(1)(c), Federal Circuit Court Rules 2001.
The Court may set aside an order made in the absence of a party: r 16.05(2)(a). The principles which are applicable to the discretionary power to reinstate a proceeding are well settled. Where a power conferred by rules of court is cast in discretionary terms, the exercise of such power is not automatic but calls for the exercise of that discretion: cf Gallo v Dawson (1990) 93 ALR 479, 480 (McHugh J). Inherent in the conferral of a discretionary power is an assumption that some applications may be refused: Jackamarra v Krakouer (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J). The waste of scarce Court resources is not an irrelevant consideration: MZAKQ v Minister for Immigration and Border Protection.[1]
[1] [2016] FCA 1392, [11] (Logan J).
In relation to the power to reinstate a proceeding, in CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 at [4], Mortimer J restated the test in these terms:
. . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
See also the discussion in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs;[2] MZYEZ v Minister for Immigration and Citizenship;[3] BTR15 v Minister for Immigration and Border Protection;[4] AAI15 v Minister for Immigration and Border Protection.[5]
[2] [2005] FCA 1066 at [18] (North J).
[3] [2010] FCA 530 at [7] (Ryan J).
[4] [2016] FCA 892 at [7] (Edelman J).
Applicable threshold
The exercise of discretion in favour of an order for reinstatement does not require the Court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review: CAL15 at [5]. Rather, on an application for reinstatement, the threshold which is applicable to a consideration of the merits of the application is whether the grounds for judicial review are shown to be ‘arguable’: CAL15, [5] citing MZABP v Minister for Immigration and Border Protection.[6] There, Mortimer J stated at [6]:
The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. (emphasis added)
[6] [2015] FCA 1391, [62]
More recently, in Savrimootoo v Minister for Immigration and Border Protection [2018] FCA 1167 at [47], Mortimer J referred to CAL15 and described the discretion to reinstate a proceeding as a broad one.
The assessment upon an application for reinstatement, which requires the Court to consider whether a ground of review is arguable, is evaluative. As Ryan J observed in MZYEZ, it follows from the principles considered above that the “decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles” stated by Dixon, Evatt and McTiernan JJ in House v The King[7]: cf BAL17 v Minister for Immigration and Border Protection.[8]
[7] (1936) 55 CLR 499 at 504 to 505
[8] [2018] FCA 792, [10] (Bromwich J).
I apply these principles in the present application.
Reasonable excuse & prejudice
The Minister conceded both the issue of reasonable excuse and prejudice.
However, it was submitted that the applicant’s delay of seven weeks in making the application should not be overlooked. I have not done so.
Slip rule
The proposed amended application in a case, advanced a claim that the Order dismissing the application for want of appearance was amenable to amendment under the slip rule. This application was not pressed.
Grounds 1 & 2 – failure properly to consider credibility and legal unreasonableness
It is convenient to consider proposed Grounds 1 and 2 together.
Proposed amended ground one of the draft application reads:
1. The Second Respondent failed in its duty to ‘consider’ the Applicant’s claims in accordance with the codified requirements for procedural fairness that apply to fast track reviewable decisions as set out in Part 7AA and s 473DB:
(a) The IAA made extensive adverse credibility findings on which its rejection of the applicant’s claims to protection and to complementary protection were based.
(i) The finding that the reason for the Applicant’s detention between 1986 and 1987 was not plausible despite supportive country information (at [10]);
(ii) The finding that the Applicant’s claims of torture at the STF camp or later at Boorsa (at [11]) were not credible and were inconsistent (at [14]);
(iii) The finding that the Applicant’s claims of being a person of interest to the authorities following his release from prison lacked credibility and were a fabrication and must be rejected (at [12]), [13], [15], [16], [32], [33], [41]);
(iv) A finding about a number of credibility concerns regarding the Applicants claims to events that occurred during the period 2002 to 2005 and fear of being followed and intimidation which were not plausible (at [17] – [24]);
(v) The finding that the Applicant’s evidence at his SHEV interview was extremely vague and ought to be rejected as an exaggeration (at [21]);
(vi) The finding that the Applicant’s claims regarding Qatar and the ransacking of his room in Qatar were inconsistent and a fabrication and not plausible (at [25] – [27]);
(vii) The finding that the Applicant’s claims regarding the incidents that occurred on his return to Sri Lanka in 2012 were not credible and were fabricated to boost his claims for protection (at [28]) regarding a phone call (at [29]), armed men looking for him (at [30]) and the Karuna group kicking down his door (at [31]);
(vii) The finding on the complementary protection assessment which was wholly based on adverse credibility findings made in assessment of the applicant’s claims to be a refugee (at [53], [54]).
(b) The Applicant’s credibility was material to the Second Respondent’s decision.
(c) In those particular circumstances, the Second Respondent was required consider a submission, being an oral or written submission or both, made by or on behalf of the Applicant.
Proposed amended ground two of the draft application reads:
2. The Second Respondent failed to exercise its powers conferred by Part 7AA on the implied condition that they are to be exercised within the bounds of reasonableness:
(a) The Applicant repeats Ground 1 and its sub-paragraphs and particulars.
(b) In those particular circumstances, the failure by the Second Respondent to exercise its power was a failure to conduct a ‘review’.
It is apparent that by these proposed grounds, the applicant seeks to impugn the manner in which the IAA addressed the applicant’s claim grounded upon an alleged failure properly to consider his credibility. To that end, reliance was placed upon the scope of the IAA’s obligations in the conduct of a review under Part 7AA of the Act.
In particular, counsel drew attention to the Full Court’s analysis of those obligations in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210. There Robertson, Murphy and Kerr JJ at [67]-[77], [87] considered the scope of the obligation to act in a legally reasonable way when exercising the power of review under Part 7AA.
While the respondent submitted persuasively that CRY16 was clearly distinguishable from the present case, I was satisfied that the matter raised by proposed Grounds 1-2 was arguable in the requisite sense including whether the IAA had comprehensively rejected the applicant’s credibility in a manner which was legally unreasonable.
Counsel for the applicant also submitted that the powers conferred on the IAA by Part 7AA of the Act were subject to an implied condition that they should be exercised within the bounds of reasonableness: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, [21], [26] (Gageler, Keane and Nettle JJ), [86] (Gordon J), [97] (Edelman J).
Although the proposed Ground 1 was articulated in terms of a duty to consider a submission as to the applicant’s credibility, the issue appeared on one view to involve an assessment of whether the IAA had brought an active intellectual process to an evaluation of the applicant’s credibility. However the ground is ultimately to be pressed, my review of the Reasons and the complaint raised in relation to the IAA’s treatment of the question of credibility satisfied me that the point was arguable. Ground 2 advanced the challenge in terms of legal unreasonableness more precisely and relied upon the same particulars.
Ground 3 – corroborating evidence
Proposed amended ground three of the draft application reads:
3. The Second Respondent failed to review and consider the corroborating evidence of the Applicant which was legally unreasonable and material:
(a) The Second Respondent placed ‘little reliance’ on the evidence of the 2012 entry interview.
(b) The Second Respondent did ‘not place much weight’ on the letter on ‘Presidential Secretariat’ letterhead dated 16 February 1987 subject matter of ‘Detention of T Varatharajah’.
(c) The Second Respondent therefore failed in its duty to ‘consider’ the corroborating evidence of the applicant was that he was detained for 18 months in 1986, that he said so in his arrival interview and that the entry interview record for was incorrect (at [8]).
In support of this ground, the applicant relied upon BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76. There North and Charlesworth JJ considered the circumstance that a Tribunal had failed to consider corroborative evidence. Their Honours held at [6], [25] that the failure to do so meant that the Tribunal may have failed to adopt the preferable approach in going about the task presented by s 430 of the Act citing Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 (2003) 198 ALR 59, [49] (McHugh and Gummow JJ).
It is immediately apparent that the decision the subject of this application rested upon the scope of the obligations respecting Part 7AA-Fast Track Review Process in relation to certain Protection visa applications as distinct from those in relation to Part 7- Reviewable decisions.
As it was presently formulated, I was not persuaded that proposed Ground 3 raised an arguable ground of review. However, counsel for the applicant submitted that the possibility remained that the results of material to be obtained pursuant to a Freedom of Information Request in relation to the manner of the IAA’s conduct of the review may yield some information that supported a ground of this kind.
While I have not foreclosed the applicant from attempting to reformulate a tenable ground of review I am not prepared to allow the proposed Ground to go forward in its present form. I do not wish to be seen as encouraging the inclusion of a further ground based upon BXK15.
Conclusion
Not without hesitation, I have concluded that the applicant’s first and second proposed grounds of review are arguable. For that reason I have granted the application. I have done so in terms which fix the application for hearing at the first available date.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 21 November 2018
[5] [2018] FCA 1110, [29] (Tracey J).
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