Etd17 v Minister for Immigration
[2018] FCCA 297
•9 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ETD17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 297 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – application in a case for reinstatement of a show cause application dismissed for non attendance – dismissal of reinstatement application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Applicant: | ETD17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3283 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms S Given of HWL Ebsworth |
INTERLOCUTORY ORDERS
The application in a case filed on 30 January 2018 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3283 of 2017
| ETD17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
I have before me an application in a case filed on 30 January 2018. The applicant seeks reinstatement of a judicial review application filed on 24 October 2017 which was dismissed by a Registrar on account of the applicant’s non attendance at first court date directions.
Background facts relating to this matter are conveniently set out in the Minister’s outline of written submissions filed on 8 February 2018. A chronology appears at [6] of those submissions:
The following chronology is relevant in the present matter and can be discerned from the affidavit of Anna Davyskib, made on 8 February 2018 (Davyskib Affidavit):
| Date | Event |
| 24 October 2017 | Originating application filed and return date listed for 30 November 2017 |
| 28 November 2017 | Short minutes of order sent to court with applicant copied |
| 30 November 2017 10.15am | First court date before Registrar Morgan |
| 11.30am | Matter dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) |
| 11.40am | Documents sent from Federal Circuit Court “Help Desk” to Associate to Judge Driver seeking adjournment |
| 12.01pm | Documents emailed from Associate to Judge Driver to NSW Registrar Support |
| 12.44pm | Email from NSW Registrar Support to HWL Ebsworth Lawyers |
| 1.42pm | Email from HWL Ebsworth Lawyers to NSW Registrar Support |
| 4 December 2017 10.24am | Matter relisted for 7 December 2017 at 10.15am Email from NSW Registrar Support to HWL Ebsworth Lawyers |
| 5 December 2017 | Email from HWL Ebsworth Lawyers to NSW Registrar Support |
| 6 December 2017 | Repeated attempts by HWL Ebsworth Lawyer to contact applicant |
| 6 December 2017 8:54pm | Email from Applicant to Associate to Judge Driver, copied to NSW Registrar Support |
| 7 December 2017 9.33am | Email from NSW Registrar Support to HWL Ebsworth Lawyers (attaching applicant's email from 8:54pm 6 December 2017) |
| 9.39am | Email from HWL Ebsworth Lawyers to NSW Registrar Support |
| 10.02am | Email from applicant to NSW Registrar Support |
| 10.15am | Directions hearing before Registrar Morgan |
| 10.16am | Email from NSW Registrar Support to HWL Ebsworth Lawyers attaching medical certificate dated 6 December 2017 |
| 11.30am | Matter dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules |
| 11 December 2017 | Orders and rule 16.05 of the Federal Circuit Court Rules served on applicant |
| 30 January 2018 9.24am | Application in a case filed |
| 9.59am | Email from Federal Court Registry to HWL Ebsworth notifying application in a case and listing time |
The present proceedings
In addition to the two applications, I have before me the applicant’s affidavit filed with his judicial review application and an affidavit filed with his application in a case. The applicant was cross-examined at length on those affidavits. I also received as an exhibit a bundle of documents sent to the Court at various times.[1] I have received as a submission an email sent by the applicant to the Court on 17 January 2018.
[1] Exhibit A1
The Minister opposes the reinstatement application. The Minister has filed the detailed Davyskib Affidavit, to which are annexed a substantial volume of documents.
Consideration
In order to be granted reinstatement, the applicant must provide a satisfactory explanation for his failure to attend the directions hearing on 7 December 2017 (and arguably on 30 November 2017 depending on the view this Court takes in relation to the purported re-listing).
The applicant must also explain his delay in seeking to set aside the orders made by Registrar Morgan on 7 December 2017. The application in a case filed on 30 January 2018 was 54 days after the most recent dismissal for non-appearance.
In addition, the applicant must demonstrate that his application has prospects of success. Where a substantive application lacks prospects of success, reinstatement would be futile and therefore an application for reinstatement ought to be refused.
The explanation for the delay and the ground seeking reinstatement make the same assertion, namely:
I don’t agree made Registrar Morgan as his decision is denial natural justice because I have a compelling circumstances for second direction which was supported by medical evidence. Order, matter must be put before Federal Circuit Court. I believe that I should be entitled my case continuing
(errors in original)
I have considered the above issues in relation to the reinstatement application. The first is whether the applicant has advanced a satisfactory explanation for his failure to attend court. I accept that the applicant has obtained medical certificates at various times. When the matter was first listed for directions before the Registrar, the applicant consulted a medical practitioner, who provided him with a certificate stating that he was unfit for work. While no ailment was noted in that certificate, the applicant stated under cross-examination that he was at the time suffering from diarrhoea.
It appears that that ailment manifested itself on 28 November, several days before the first court date directions, although the medical certificate extended to the day after those directions. The applicant was not prompt in alerting the Court to the apparent difficulty and did not inform the Minister’s solicitors at all. On the day of the directions, the Registrar initially dismissed the application in ignorance of the medical certificate which had been sent to my chambers. On being informed of it, the Registrar, it appears, vacated that order and, instead, adjourned the first court date directions to the second date. I have proceeded on the assumption that the Registrar was empowered to do so, but that the applicant’s initial non attendance remains relevant.
The applicant’s approach to the issue is, to say the least, peculiar in the light of the evidence available from Ms Davyskib’s affidavit. That reveals[2] that on 28 November 2017 the applicant was sent the orders that the Minister proposed should be made by the Registrar at the first court date on 30 November 2017. Among other things, the Minister proposed that the case be listed for a final hearing at 10.15am on 9 May 2019. It appears that I had agreed to that course, although I have no direct recollection of it. The applicant told me that he had no problem with the proposed orders.
[2] At page 13
Although the email from the Minister’s solicitors to the applicant indicated that he was required to attend court, it would have been open to the applicant to indicate on 28 November 2017 that he was unwell, to express his agreement with the proposed orders and to invite the Minister’s solicitors to seek those orders in his absence. He explained that he did not do that because of inexperience.
While that might arguably constitute a satisfactory explanation for the first non attendance, the second non attendance is harder to explain. The available material indicates that the applicant sought medical attention after having a bad dream. It appears that he attended Liverpool Hospital and was kept under observation for some hours. He subsequently attended an after hours medical facility and obtained a medical certificate stating his unfitness for work.
As I said to the applicant during oral argument, if he was well enough to undertake those steps, then he was well enough to come to court and indicate simply his agreement with the proposed orders. The applicant’s conduct suggests a determined effort to avoid court attendance. It appears from the Administrative Appeals Tribunal (Tribunal) decision[3] that the Tribunal experienced similar difficulties with the applicant. The hearing conducted by the Tribunal on 7 September 2017 was the third attempt. The applicant had succeeded in obtaining two adjournments due to asserted illness.
[3] At [4]
While the applicant claims various ailments or illnesses at various times, my own observation of him today is that he appears perfectly normal.
Even if the applicant had persuaded me that he had a reasonable explanation for non attendance at court on the two occasions in issue, there is not, in my view, a serious question to be tried arising out of the judicial review application. That application contains seven handwritten grounds which, in large measure, go the merits of the Tribunal decision.
The Minister was prepared to concede, for the purposes of first court date directions, that a final hearing was justified because of the allegation of procedural unfairness in the grounds. That allegation of procedural unfairness is that the Tribunal conducted its hearing in the English language and that the applicant was thereby disadvantaged. There would certainly be an arguable case of jurisdictional error if the applicant had requested an interpreter for the Tribunal hearing and that request had been denied. The evidence available from Ms Davyskib’s affidavit, however, establishes that in his application to the Tribunal the applicant stated that he did not need an interpreter. The applicant conceded under cross‑examination that at no stage did he inform the Tribunal that he wished to have an interpreter. The Tribunal recorded[4] that the applicant speaks and writes and reads Punjabi, English and Hindi.
[4] At [13] of its reasons
In his judicial review application in this Court, the applicant requested a Hindi interpreter. At the outset of the hearing today, the applicant stated, through the interpreter, who had been arranged for today’s hearing, that he would prefer a Punjabi interpreter. That request was readily accommodated as the interpreter booked for today’s hearing speaks both languages fluently. The impression I gained, however, was that the applicant was willing to use the issue of interpreters as a tactical ploy.
It is apparent from the documents before me and the applicant’s oral evidence that he has a high level of proficiency in the English language. In the circumstances, in my opinion, the allegation of procedural unfairness before the Tribunal would go nowhere.
In oral argument, the applicant asserted that the Tribunal also erred in failing to consider a statement from his friend. I invited the applicant to show me in the grounds in his application where that assertion appears. He referred me to Ground 5 where he states that he is “not a very tech savvy person” and was not at all familiar with online texting. He states that he had met gay men mostly in gay clubs, but none of them materialised in a meaningful relationship. He asserts a relationship with a named person for six months.
It appears that the Tribunal invited the applicant to display any electronic messages from this person on the applicant’s smartphone and he was unable to do so. That is a very different matter from failing to consider a statement.
I conclude that as now understood, the judicial review application does not disclose a serious issue to be tried.
A further matter is the applicant’s tardiness in bringing the reinstatement application. He became aware of the dismissal of his judicial review application shortly after the adjourned first court date. He has provided a further medical certificate, pointing to some unspecified illness or ailment between 11-15 December 2017, but he waited until the end of January 2018 to file his reinstatement application.
That is in part explained by an email to my associate on 17 January 2018. It appears that the applicant emailed his reinstatement application to my chambers and I assume it was referred by my staff to the Registry. Even so, the application was sent around one month after the applicant was apparently well enough to do so and a similar time after he had prepared an affidavit in support of it.[5] I conclude that the applicant has adopted a leisurely approach to the issue of reinstatement.
[5] The affidavit in support was made on 13 December 2017 but not filed until 30 January 2018.
The Minister submits that the reinstatement application is an abuse of process. While that is arguable, I am unwilling to make a finding that the present application is an abuse of process. I would, however, be likely to take a different view in relation to any further applications in this Court in relation to the judicial review proceedings.
I otherwise agree with the Minister’s submissions.
Conclusion
I conclude that the interests of the administration of justice do not call for the reinstatement of the judicial review application.
I will order that the application in a case filed on 30 January 2018 be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $2,300. That is a similar amount to that ordered by the Registrar in dismissing the judicial review application. I accept that significant work has been required of the Minister in order to deal with the reinstatement application and the hearing of the application has taken about three hours.
The applicant claims impecuniosity, but that is not a reason for the Court to refrain from making a costs order. I will not require payment of the costs by any particular time.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,300.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 February 2018
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