Eyx20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 701
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EYX20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 701
File number(s): BRG 630 of 2020 Judgment of: JUDGE LAING Date of judgment: 23 August 2022 Catchwords: MIGRATION – application for reinstatement following dismissal for non-appearance at callover – application to extend time for applying for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant a protection visa – whether reasonable excuse for non-appearance – whether extension of time application has reasonable prospects of success – whether it is in the interests of the administration of justice to reinstate application – whether grounds raised by the applicant are reasonable arguable – application dismissed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06, r 17.05
Migration Act 1958 (Cth) ss 424A, 430A, 438, 477
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
CNW15 v Minister for Immigration and Border Protection [2018] FCA 849
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 23 August 2022 Counsel for the Applicant: The applicant appeared via telephone with the assistance of an interpreter Solicitor for the First Respondent: Ms G Ellis, of Sparke Helmore, appeared via telephone Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
BRG 630 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EYX20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
23 AUGUST 2022
THE COURT ORDERS THAT:
1.The application for reinstatement filed on 21 July 2022 be dismissed.
2.The applicant pay the first respondent’s costs of the reinstatement application fixed in the amount of $1,500.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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
EX TEMPOREJUDGE LAING
By an application in a proceeding filed on 21 July 2022 (reinstatement application), the applicant seeks to set aside orders made by Judicial Registrar Carney on 15 June 2022. Those orders dismissed with costs an application seeking an extension of time (EOT application) under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
The dismissal on 15 June 2022 was pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules). This was on the basis of non-appearance by the applicant at a callover listing on that date. The applicant seeks reinstatement under r 17.05(2)(a).
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia on 22 May 2015 as the holder of a Visitor (Subclass 601) (Electronic Travel Authority) visa.
The applicant applied for a protection visa on 28 May 2015.
On 7 March 2016, the Delegate refused to grant the applicant a protection visa. The applicant applied to the Tribunal for review of the Delegate’s decision on 24 March 2016.
On 9 December 2016, the Tribunal affirmed the Delegate’s decision not to grant the applicant a protection visa.
On 27 November 2020, the applicant filed the EOT application commencing proceedings in this Court. Procedural orders were made by consent on 19 January 2021.
The matter was listed for a callover on 15 June 2022. The applicant did not attend the callover. His EOT application was dismissed pursuant to r 13.06(1)(c) of the Rules.
The applicant filed the reinstatement application on 21 July 2022.
THE TRIBUNAL’S DECISION
The Tribunal accepted that the applicant was a citizen of Malaysia (at [15]).
The Tribunal was prepared to accept that the applicant and his father may have been robbed on one occasion in Malaysia in the past. However, the Tribunal considered that this was a “random event” that did not involve targeting based upon ethnicity. The Tribunal was not satisfied that the applicant had experienced any further relevant incident in the year prior to his departure from Malaysia (at [27]).
Further, the Tribunal was not satisfied:
(a)that the applicant “ha[d] been entirely truthful in his claims” to fear of harm on the basis of his Chinese ethnicity. The Tribunal did not accept that the applicant “ha[d] experienced serious harm in Malaysia, that he was targeted due to his ethnicity, or that he experienced discrimination from the government amounting to persecution” (at [17]);
(b)that, based on country information, the Malaysian police would be unable or unwilling to provide the applicant with protection from an unknown assailant, or that the police would have protected Malay villagers in circumstances of an armed robbery. For these reasons, and considering inconsistency in the applicant’s evidence, the Tribunal was “not satisfied that the applicant’s claims that the authorities or the police had denied him protection were credible” (at [20]);
(c)that Malays set fire to property of the applicant or his father at any time. Whilst the applicant had stated in his written claims that his house had been set on fire, his evidence to the Tribunal was that fire was set to a storage shed. The Tribunal considered “that the inconsistency reflect[ed] poorly on the credibility of the applicant and that of his claims” (at [21]);
(d)“that the claims of the applicant regarding constant harassment and economic demands [we]re credible”. The Tribunal considered that it was “not plausible to the Tribunal that if the applicant and his father were unable to make a profitable living from farming jackfruit that they would continue with this activity in this location for years” (at [22]);
(e)with the explanation given by the applicant as to why he had not mentioned an incident – where he was hospitalised following a robbery and ensuing fight – that was claimed at hearing in his written claims. The Tribunal did not accept the explanation that another incident involving a knife was more serious, and that this was why it was the only incident mentioned in his written claims. The Tribunal considered: “this inconsistency reflects poorly on the credibility of the applicant and that of his claims and it is not satisfied that he was harmed in this manner at any time in Malaysia” (at [23]);
(f)that if the applicant genuinely feared harm, he would have continued to attend the farm and go about his normal activity without seeking further assistance or alternative employment. The Tribunal considered that the applicant had embellished the reasons that he feared harm (at [24]);
(g)with the applicant’s evidence in response to the Tribunal raising whether the applicant could work elsewhere in Malaysia and avoid the harassment he claimed to have experienced travelling to the farm. The Tribunal expressed concerns that the applicant had come to Australia for economic reasons. The Tribunal also expressed concerns about “the credibility of his claim, and that his inability to find a high paying job in Malaysia did not appear to be persecution or significant harm within the meaning of the Act” (at [25]);
(h)“that the applicant would be denied the capacity to earn a livelihood of any kind, or experience significant economic hardship that threatens his capacity to subsist if he was to return to Malaysia now or in the reasonably foreseeable future”. In this regard, the Tribunal considered that the applicant had obtained employment, experience and skills in Australia that would assist him (at [26]);
(i)that, based upon available country information, “isolated incidents in Malaysia against ethnic Chinese, such as the robbery he claimed to have experienced, demonstrates that Chinese in general or the applicant in particular, face discrimination and a real chance of serious harm on the basis of ethnicity” (at [28]).
On the basis of this reasoning, the Tribunal stated the following in reaching the conclusion that the applicant did not satisfy the criteria for protection:
29.Overall, the multiple concerns about the evidence of the applicant when considered in totality, led to the conclusion that the applicant has given [sic] a true account of his circumstances and the reasons he fears harm in Malaysia. The Tribunal had concerns about every element of the applicant claims. This is because of the lack of detail with respect to any particular incidents of harm or racial discrimination by the government, the inconsistency with the applicant's evidence and his written claims, the delay between his departure to Australia and the event when he claimed he was robbed, the applicant and his father's ongoing work at the farm and his admissions as to economic motivators for his travel to Australia. It is not satisfied that his claims are credible and the Tribunal finds that he travelled to Australia for economic reasons and not for any genuine fear of harm.
30.It follows that, on the information before it, the Tribunal cannot be and is not satisfied that: the applicant faces a real chance of persecution involving serious harm in Malaysia for any reason (including race, religion, nationality, membership of a particular social group or political opinion). His fear of persecution is not well-founded as required by s.5J of the Act and he is, therefore, not a refugee within the meaning of s.5H.
31.For the same reasons, on the evidence before it, the Tribunal cannot be and is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
REINSTATEMENT APPLICATION
Relevant legislation and principles
Rule 13.06(1)(c) of the Rules relevantly provides:
13.06 Default of appearance of a party
(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
...
(c) if the absent party is an applicant—dismiss the application…
Rule 17.05(2)(a) of the Rules relevantly provides:
17.05 Setting aside or varying judgments or orders
…
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party;...
The power is discretionary. It requires the Court to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 (FBS18) at [50]-[52].
The following matters are often considered:
(a)whether there is a reasonable explanation for non-appearance at the hearing and any delay in applying for reinstatement;
(b)any prejudice to the other party; and
(c)whether the grounds identified in the substantive application have reasonably arguable prospects of success. If not, there is “no purpose in reinstatement”: see MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] and FBS18 at [52]-[53].
Explanation for non-appearance
In an affidavit filed with the reinstatement application, the applicant stated the following:
1. I didn't received the notification for my hearing set on 15 June 2022.
2. I wish to reinstate my application and have a full judgement of my case.
The affidavit did not explain how the applicant ultimately learned of the hearing nor whether he was monitoring the addresses for service that he provided to the Court.
The Notice of Listing for Callover was emailed on 1 June 2022 to the email address provided by the applicant in his originating application. The email advised: “[i]f you miss the callover and do not appear by telephone, your matter may be dismissed and costs may be ordered against you”. This correspondence was annexed to the affidavit of Cody Nathalie Allen affirmed on 19 August 2022 (Allen Affidavit) that was relied upon by the Minister.
During the hearing, the applicant accepted that he had not attended the callover due to this own oversight. He also explained that due to limitations in his English ability, when he received correspondence or documents in this matter he had forwarded them to a lawyer who was providing him with some assistance. In this regard, I noted that no lawyer had gone on the record as acting for the applicant in these proceedings. The applicant represented himself at the hearing of this matter.
I accept that the applicant has limited ability in English. Regrettably, this is a situation faced by many applicants who come before this Court. I do not underestimate the very real difficulties that this creates for applicants in proceedings such as the present, particularly when they have no lawyer acting for them in the proceedings.
However, this situation cannot be regarded as an entirely satisfactory explanation for non-appearance or delay. The applicant, to his credit, accepted that he bore responsibility for his non-attendance at the previous listing.
I accept the Minister’s submission that adequate explanation has not been provided for the applicant’s non-appearance at the callover, or for his five week delay in applying for reinstatement. This weighs against reinstatement.
Prejudice to the respondents
The Minister conceded that he would suffer limited prejudice if the application were reinstated. However, it has been recognised that there is a public interest in the finality of litigation and administrative decision making. The absence of significant prejudice is not determinative: CNW15 v Minister for Immigration and Border Protection [2018] FCA 849 at [23]; Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].
Merits
If the proceedings were reinstated, the applicant would require an extension of time under s 477(2) of the Act. The principles relevant to such an application have been considered in cases such as BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 and, recently, in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28.
The delay in this case is significant. The EOT application was filed well over 3 years (and nearly 4 years) out of time. No affidavit explaining the delay was filed. The only explanation provided was in the application form under “Grounds of application for extension of time”, in which the applicant contended that he “was not correctly informed of the decision of AAT” and that he “was not correctly informed of [his] rights from the AAT”.
At the hearing, the applicant stated that he didn’t have a good understanding of the appeals process. He said he followed what his lawyer told him to do. The applicant stated that he was also focussed at the time on his mother’s medical condition.
In response, I observed that there was no record of the applicant ever being represented by a lawyer, either before the Tribunal or in the proceedings before this Court. I noted that the applicant’s personal email address appears to have been provided and used for correspondence in the proceedings before the Tribunal.
Ultimately, I agree with the Minister’s representative that the applicant has not provided a satisfactory explanation for the lengthy delay in filing the EOT application. The materials before the Court indicate the Tribunal’s decision was sent to the applicant at the email address for service he had provided to the Tribunal in his application to it. The notification appears to have met the legislative requirements under s 430A of the Act. The applicant has not explained how or why he says that he “was not correctly informed of the decision”. The brochure provided with the notification letter confirmed the timeframe in which the applicant was required to make any application for judicial review. In any event, as the Minister has submitted, the applicant bore responsibility for ascertaining his review rights and the applicable timeframe: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33].
The extent of the delay, which was aptly described as “inordinate” by the Minister, combined with the lack of a satisfactory explanation, would weigh heavily against granting the EOT application. The Minister submitted that he would be prejudiced if time were extended in these circumstances, having regard (inter alia) to the public interest in finality of administrative decision making. In any event, the Minister observed that the absence of prejudice would not be sufficient reason for exercising the discretion to extend time.
Further, even if the delay had been more limited, or the explanation more satisfactory, I would have refused to grant reinstatement on the basis that the EOT application lacks reasonably arguable prospects of success. This is because the underlying substantive application that was relied upon by the applicant lacks such prospects. In these circumstances, reinstatement would serve no purpose.
The following grounds of review were raised in the originating application filed on 27 November 2020:
1.AAT didn’t affor[d] me procedural fairness according to the requirements of law.
2.The Tribunal had concerns about every element of my claims and failed to assess of my risks as a minority under the discriminatory law in that country.
3.AAT didn’t consider different kinds of harms I will suffer including physical and emotional abuses.
These grounds as pleaded were unparticularised. The applicant did not specify how the Tribunal was contended to have denied him procedural fairness, nor how exactly its assessment of his claimed risk of harm was contended to have been defective. The applicant was unable to elaborate meaningfully upon the grounds during the hearing of his reinstatement application.
No basis for the grounds is apparent on my review of the materials.
Ground 1
On my review, the Tribunal appears to have complied with its obligations under Part 7, Division 4 of the Act. The applicant was invited to, and attended, a hearing before the Tribunal. The Tribunal’s decision record indicates that the Tribunal explored the credibility of the applicant’s account with him in some detail. It also discussed with him country information that was ultimately considered. This includes:
(a)at [20], which indicates the Tribunal put to the applicant country information regarding the effectiveness of the Malaysian police force which called into question his claim that they had been unwilling to assist him following the alleged incident involving a knife;
(b)at [23], which indicates the Tribunal raised with the applicant that aspects of his account at hearing had not been raised in his written claims;
(c)at [25], which indicates that the Tribunal explored with the applicant why he had continued to work at the farm despite the issues he claimed to have experienced. This paragraph also indicates that the Tribunal more generally put to the applicant “concerns about the credibility of his claim”; and
(d)at [28], which indicates that the Tribunal put to the applicant country information that tended against his claims to be owed protection obligations on the basis of ethnic discrimination.
The evidence before the Court therefore indicates that the applicant was on notice of the relevant issues that arose in relation to the review. The applicant has not identified any issue that the Tribunal was obliged to draw to his attention, but did not. Nor has anything been identified in the materials that was capable of enlivening the Tribunal’s obligations under s 424A of the Act. Nothing in this regard is apparent on my own review of the materials.
The Minister accepts that an invalid s 438 certificate appears in the materials that does not appear to have been disclosed to the applicant. However, the Minister has put into evidence the underlying documents, which were annexed to the Allen Affidavit. The material covered by the certificate appears to be two forms utilised by the Department of Immigration and Border Protection (as it was), being an identification test and a disclosure decision checklist. The Tribunal’s decision in this case did not turn upon any adverse findings relating to the applicant’s identity. Noting this, I see no available ground(s) relying upon the s 438 certificate that would enjoy reasonable prospects of success. This is because I am unable to identify any reasonably arguable basis for finding that any error regarding the Tribunal’s non-disclosure of the certificate was material in the sense considered in cases such as Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421.
I am therefore not persuaded that ground 1 identifies any reasonably arguable basis for finding jurisdictional error.
Ground 2 and 3
As summarised earlier, the Tribunal considered the applicant’s claims to face discrimination as a minority in Malaysia. The Tribunal did not accept that the applicant had faced serious or significant harm on this basis in the past. The Tribunal did not accept, having regard to available country information, that the applicant would face relevant harm on this basis in the reasonably foreseeable future. Whilst the country information indicated there may be some, limited bias towards ethnic Malays in specific areas (such as admission to the civil service and university), the Tribunal did not consider that the applicant would be relevantly affected by this in his personal circumstances. The Tribunal therefore did not accept that the applicant would face (any kind of) harm that was capable of attracting Australia’s protection obligations under the Act.
The applicant has not demonstrated that any part of this reasoning was relevantly closed to the Tribunal. Instead, the applicant appeared under grounds 2 and 3 to be seeking impermissible merits review.
I am therefore not satisfied that grounds 2 or 3 have reasonably arguable prospects of success.
CONCLUSION
For these reasons, I am not persuaded that it is in the interests of justice to reinstate the applicant’s EOT application.
It follows that the reinstatement application must be dismissed.
The Minister sought costs fixed in the amount of $1,500. The applicant did not wish to be heard on this amount. I accept that the amount sought is reasonable.
I also consider it appropriate in this case to make an order to the effect that the timeframe in which any appeal may be commenced will not start to run until the written publication of these reasons to the parties.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 23 August 2022
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