Feh18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2022] FedCFamC2G 59

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FedCFamC2G 59

File number(s):	MLG 3008 of 2018
Judgment of:	JUDGE GIVEN
Date of judgment:	9 February 2022
Catchwords:	MIGRATION – Reinstatement application – applicant’s explanation for non-attendance and delay in seeking reinstatement – lack of satisfactory explanation – merits of the substantive grounds do not weigh in favour of reinstatement – personal costs order against solicitor by consent – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss.36, 476 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Federal Circuit Court Rules 2001 (Cth), r.13.03
Cases cited:	AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 AMF15 v Minister for Immigration & Border Protection (2016) 241 FCR 30 ARG15v Minister for Immigration and Border Protection (2016) 250 FCR 109 CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344 CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 FBS18 v Minister for Home Affairs [2019] FCAFC 196 FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293 MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
Division:	Division 2 General Federal Law
Number of paragraphs:	64
Date of hearing:	7 December 2021
Place:	Sydney
Solicitor for the Applicant	Mr I Warriach of Huk Legal
Solicitor for the Respondents	Ms S Roberts of Mills Oakley

ORDERS

MLG 3008 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FEH18
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	9 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The application in a proceeding filed on 21 October 2020 is dismissed.

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 GIVEN:

1. Before me is an application in a proceeding filed on 21 October 2020 by which the applicant seeks to set aside orders made by Judge Riethmuller (as his Honour then was) dismissing an application to show cause filed on 5 October 2018 (current reinstatement application). That dismissal on 7 May 2020 was pursuant to r 13.03C(1)(c) of the then Federal Circuit Court Rules 2001 (Cth) (former Court Rules), when the applicant failed to attend a hearing.  That hearing opportunity had been afforded to the applicant following an earlier reinstatement application after the applicant first failed to appear at a first court date.

2. The first respondent opposes the current reinstatement application and seeks costs.

3. The most recent procedural background to this matter is set out in my reasons for judgment delivered ex tempore on 17 November 2021: see FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293, in particular at [1] to [11], by which I acceded to an adjournment application made by the applicant’s solicitor. At the conclusion of that hearing, I made further orders for the preparation of the matter which included that the applicant must file written submissions in support of the application in a proceeding on or by 26 November 2021. I reserved costs on the basis that it would be necessary to consider whether they should be borne by the applicant’s solicitor personally pursuant to s 191(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).

4. After the hearing on 17 November 2021 the following relevant events occurred:

   (a)written submissions were filed for the applicant, but not until 30 November 2021.  No extension to the ordered timetable was sought at the time of filing or in advance of the timetable breach;

   (b)on 1 December 2021, the parties approached the Court with signed proposed consent orders seeking to resolve the issue of the costs referred to above, on the basis that the applicant’s solicitor personally pay the first respondent’s costs thrown away by reason of the adjournment of the hearing listed on 17 November 2021 in a fixed amount, pursuant to r 22.06 of the Rules. I made those orders, with an additional order that the amount ordered be paid by the applicant’s solicitor within 90 days; and

   (c)on 3 December 2021 the Minister’s written submissions were filed. 

Second Hearing

1. The current reinstatement application returned before me on 7 December 2021 and the following documents were before the Court:

   (a)the Court Book (CB) and the Supplementary Court Book (SCB) which had together been marked as Exhibit “1R” at the first hearing;

   (b)the application to show cause and an Affidavit made by the applicant on 3 October 2018 (applicant’s Affidavit), both of which were filed on 5 October 2018.  The Affidavit contains the only substantive grounds of review, and was read without objection;

   (c)the current reinstatement application filed 21 October 2020;

   (d)a document styled as an Affidavit, purportedly made on 19 October 2020 and filed in support of the current reinstatement application.  Given that this document was not witnessed, I received it as a submission.   

   (e)the written submissions for the Minister filed on 9 November 2021 in opposition to the current reinstatement application;

   (f)an affidavit of Edwin Jack Taylor made 5 November 2021 (Taylor Affidavit) which was also read at the first hearing.  An Affidavit of Sophie Caroline Roberts made on 23 November 2021 and filed on 23 November 2021 was not read at the second hearing as it went only to the issue of costs, which by then had been resolved by the consent orders made on 1 December 2021 (see [4(b)] above).

   (g)written submissions filed for the applicant on 30 November 2021.  At the commencement of the hearing, I asked the applicant’s solicitor why it was that these had not been filed in accordance with the Court’s orders, noting it was especially surprising because the opportunity to file them was the very indulgence sought by him in pursuing the adjournment which was the subject of FEH18.  The applicant’s solicitor said that he had been unwell and apologised to the Court.  He acknowledged that the Court had not been provided with any evidence as to the delay, or his alleged illness, and that he had not sought an extension to the Court’s timetable.  In order to progress matters, I received the written submissions, which were marked Exhibit 1A for easy identification in future, given my concerns as to their calibre;  and

   (h)the Minister’s supplementary submissions filed 3 December 2021.

2. As recorded in FEH18 at [10], at the hearing on 17 November 2021 I asked the applicant’s solicitor to address:

   (a)the  applicant’s explanation for his non-appearance before Judge Riethmuller, which lead to the dismissal of the proceedings;

   (b)any prejudice to the Minister; and

   (c)the merits of the grounds contained in the applicant’s Affidavit  (given that this is where the grounds of review are to be found by reference to the originating application).

3. At the commencement of his oral submissions at the second hearing I observed to the applicant’s solicitor that, given on the last occasion he had sought an adjournment on behalf of the applicant so that he could “professionally present” the applicant’s case, it was significant that the written submissions did not actually address the factors set out above.  Again, simply in order to progress things, I invited the applicant’s solicitor to address me in relation to those matters. 

   Principles for reinstatement

4. As the current reinstatement application was filed prior to the commencement of the Rules, the relevant power to set aside the orders made on 7 May 2020 is now contained in r 17.05(2)(a) of the Rules which relevantly provides that:

   (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;…

5. The discretion to set aside the orders is one which 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 at [50].

6. In FBS18, the Full Court of the Federal Court cited the decision of Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] where his Honour considered the principles relating to an application for reinstatement of a matter dismissed upon the non-appearance of an applicant as being:

   (a)whether there is a reasonable excuse for the absence;

   (b)the existence and nature of any prejudice to the other party should the reinstatement be ordered and, if present, how any such prejudice might be alleviated; and

   (c)whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level:  see MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475.

7. The matters referred to in the preceding paragraph are not exhaustive, but consistently arise for consideration in the exercise of the Court’s broad discretion to reinstate (see CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J), noting the caution expressed by the Federal Court in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32] where McKerracher J said:

   …that whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05.

8. It can also be relevant to consider additional factors such as the delay between the date of dismissal and the time at which an applicant sought reinstatement, and any explanation provided for such delay.  While delay in applying to the Court is not a mandatory consideration in every case (see AHN17 at [33]), it can be a relevant factor to be weighed in the exercise of the Court’s discretion and it does arise in this case.

   Explanation for non-attendance and delay in seeking reinstatement

9. The applicant commenced the instant proceedings by an application to show cause filed with the Court on 5 October 2018. That application, made pursuant to s 476 of the Migration Act 1958 (Cth) (Act) sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 20 September 2018 affirming a decision of a delegate of the first respondent (delegate) dated 24 May 2018 not to grant the applicant a Protection visa.

10. On 23 January 2019, orders were made by Registrar Luxton dismissing the application with costs pursuant to r 13.03C(1)(c) of the former Court Rules on the basis that the applicant failed to appear at the first court date.

11. On 17 April 2019, the applicant filed an application in a case seeking to set aside the orders made by Registrar Luxton on 23 January 2019.  An Affidavit filed in support of that application claimed that the applicant had been in prison on the relevant date and that prison authorities had not made arrangements to facilitate his appearance at Court.

12. On 15 May 2019, Judge Riley made orders by consent pursuant to rule 16.05(2)(c) of the former Court Rules setting aside the orders made by Registrar Luxton on 23 January 2019.

13. On 13 April 2020, the Associate to Judge Riethmuller sent an email to the parties attaching a listing notice to advise that the matter would be heard on 7 May 2020 at 2:30pm: see Annexure EJTS-1 to the Taylor Affidavit.

14. On 23 April 2020, the first respondent’s solicitors filed and served written submissions and the SCB which forms part of Exhibit 1R, on the applicant under cover of email which also attached a letter reminding the applicant of the hearing details and putting him on notice that should he failed to appear, the first respondent reserved the right to seek orders that the application be dismissed with costs:  see Annexure EJTS-2 to the Taylor Affidavit.

15. On 27 April 2020, the Court emailed the parties to advise that the hearing would proceed using the Microsoft Teams platform and that the Court would make arrangements for the applicant to appear from immigration detention: see Annexure EJTS-3 to the Taylor Affidavit.  On 29 April 2020, the solicitors for the first respondent sent an email to the Associate to Judge Riethmuller confirming that the applicant was no longer in detention: see Annexure EJTS-4 to the Taylor Affidavit.

16. On 30 April 2020, the Court emailed the parties confirming that (see Annexure EJTS-4 to the Taylor Affidavit):

    (a)the matter remained listed on 7 May 2020 at 2:30pm via Microsoft Teams;

    (b)as the applicant was no longer in detention, arrangements would not be made for his attendance;

    (c)the applicant would be required to appear by video conference or telephone using Microsoft Teams; and

    (d)if the applicant failed to attend “electronically”, final Orders may be made in his absence.

17. On 5 May 2020, the applicant emailed the first respondent’s solicitors saying (errors in original):

    I am writing this email to inform you that i am not able to attend this hearing on 07/05/2020.  Recently my health is not well so because of my health issues am not in the condition to attend this hearing.

    this is my humble request to you if you could give me some more time and extend this hearing further.

    Thnks

18. On 6 May 2020, the first respondent’s solicitors responded to the applicant by email, copying the Associate to Judge Riethmuller and saying that any adjournment request would be opposed, and that orders would be sought to dismiss the application if he failed to appear at the hearing on 7 May 2020: see Annexure EJTS-5 to the Taylor Affidavit.  

19. On 6 May 2020, the Associate to Judge Riethmuller sent an email to the parties confirming that the matter remained listed for hearing at 2.30pm on 7 May 2020, the parties were required to attend and any further application for an adjournment could be made before his Honour at the hearing: see Annexure EJTS-6 to the Taylor Affidavit.  

20. The applicant did not appear at the hearing before Judge Riethmuller on 7 May 2020 and his Honour made orders pursuant to r 13.03C(1)(c) of the former Court Rules dismissing the application with costs.

21. On 8 May 2020, the first respondent’s solicitor served a copy of the sealed order of Judge Riethmuller dated 7 May 2020 on the applicant by email: see Annexure EJTS-7 to the Taylor Affidavit.

22. On 12 October 2020, the applicant was again taken into immigration detention.

23. On 21 October 2020 the current reinstatement application was filed for the applicant by his current solicitor, together with the Affidavit document in support, which was dated 19 October 2020 (but not witnessed).

24. By that Affidavit document, which as noted above I received as a submission, the applicant proffers the following explanation for his failure to appear before Judge Riethmuller on 7 May 2020 by Microsoft Teams:

    4.  The court should overturn or charge its own decision based on the pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rule 2001 and new date should be given to the matter and fair chance should be given to me in presenting my argument in relation to Administrative Appeals Tribunal decision through a lawyer.

    5.  I was not able to attend and present my case due to illness, unrepresented and COVID-19 repercussions.

    6.  I have been disadvantaged due to stringent court procedures and devoid of proper legal and professional advice.

    7.  I have not got any correspondence being running out of everything.  My phone was also out of order and did not have any access to email. 

    8.  I have applied for adjournment based on my circumstances but in vain.

    9.  I have now engaged a Lawyer who will represent my case and make submissions.

    10. I was disadvantaged being unrepresented and not much literate to represent my case, hence application to be dismissed.

25. It emerged during the course of the second hearing that the Affidavit document was drafted by the applicant’s solicitor (notwithstanding the footer to that form suggests that the applicant had prepared it himself).  I was told that the reason that the Affidavit document was not witnessed was because the applicant was in immigration detention and therefore apparently no qualified witness was available. 

26. The explanation/s proffered by the applicant for not appearing before the Court on 7 May 2020 can accordingly be summarised as follows:

    (a)he was unable to attend due to illness and “COVID-19 repercussions”;

    (b)he had no access to phone or email; and

    (c)he was unrepresented.

27. The written submissions which form Exhibit 1A deal with these matters as follows:

    2.  The Applicant reiterated that he was unable to attend the scheduled hearing based on the predicament of Covid 19, medical condition and being unrepresented. All these factors made him unable to attend the final court proceedings.

    …

    9.  The application in a case was made on 21 October 2020 to reinstate the case as the applicant was unable to attend the hearing on the reasons submitted in the opening paragraphs. It has been 5 months delayed as the applicant had to find a representative and has been struggling with the other personal constraints. The applicant has been in detention centre for long time and was disadvantaged as compared to other applicants. Since all the world is passing through the trivial time of Covid-19, the applicant was also unable to cope with the logistics and had very low proficiency to handle the matter through online sources.

28. At hearing, when asked to address the question of the explanation for non-attendance and the subsequent delay in filing a reinstatement application the applicant’s solicitor made submissions to the effect that the applicant was “in very special circumstances in relation to attending the proceedings” because he was in immigration detention and had found it difficult to find legal representation.

29. In part, the applicant claims to have been unable to attend the hearing on 7 May 2020 because he was unwell.  The paragraph of the Affidavit document which makes this claim also refers to COVID-19 albeit there is no specific suggestion that the applicant was ill with the coronavirus.  As noted at [21], 2 days before the scheduled hearing, the applicant emailed the first respondent’s solicitors to say he could not attend because of health issues.  There was no mention of COVID-19 in that email. 

1. Aside from a bare claim in the Affidavit document, and the bare claim in the email dated 5 May 2020, there is no evidence before the Court to indicate that the applicant was unwell at the relevant time, much less so unwell that he was unable to participate in the hearing which in any event was scheduled to be heard using the Microsoft Teams platform.  That online medium would have enabled the applicant to participate from his own home, or any other comfortable or convenient location.  I am not satisfied that the applicant was in poor health, nor that such health condition prevented his attendance.  The applicant was on notice that despite this claimed ill-health, the first respondent opposed any adjournment and by the correspondence from the Court that the matter remained listed and that the proceedings may be dismissed should he fail to attend.  Notwithstanding that notice, he did not attend despite being made fully aware of the potential consequences.

2. The first respondent says, and I agree, that it is unclear what the applicant means when he refers to “COVID-19 repercussions” but that the Court had been conducting hearings by audio/visual conferencing as a precaution during the COVID-19 pandemic for most of 2020 (and continues to do so), and that it took appropriate steps to ensure the applicant was provided with clear instructions to facilitate his appearance remotely. In my view the applicant was not disadvantaged in any way by the procedures adopted by the Court.

3. The applicant also says he did not have phone or email access such that he could participate in the hearing.  Again, aside from this bare assertion, there is nothing before me to indicate that this was in fact an extant state of affairs.  At least as at 5 May 2020 he had email access such that he could write to the solicitors for the first respondent to say he was unwell and seek an adjournment.  I note also that the correspondence from the Judge’s Chambers to the parties provided helpful and detailed instructions regarding the various ways in which to access the Microsoft Teams hearing (see Annexure EJTS-3 to the Taylor Affidavit).  I am not satisfied that the applicant was wholly unable to access even a telephone in order to participate in the hearing before Judge Riethmuller. 

4. A large part of the applicant’s explanation for why he could not attend the hearing on 7 May 2020 was that he was not legally represented.  As will be apprehended from all that is set out above and in FEH18, these proceedings have a lengthy history.  As at the time the applicant failed for the second time to appear at hearing, he had commenced the proceedings with an Affidavit and already successfully applied for reinstatement on one previous occasion, all while being legal unrepresented.

5. Moreover, and perhaps most significantly, when the applicant was detained on 12 October 2020, it took him less than 10 days to retain his present solicitor and apply for reinstatement a second time.  This demonstrates to me that when he was focused and incentivised to do so, the applicant was fully capable of seeking and retaining legal representation.  As at May 2020 the proceedings had been on foot for 19 months.  While I accept that in this time the applicant had been incarcerated for one period and in immigration detention for another, there is no evidence to suggest he took any steps throughout the duration of the proceedings including while not detained, to obtain legal representation.  It was the responsibility of the applicant to have his matter prepared for hearing.  He was given adequate notice that the matter would be heard and there is nothing to indicate that he took any steps to obtain legal representation.

6. It is well established there is no right to legal representation in migration review proceedings under the Act: see AMF15 v Minister for Immigration & Border Protection (2016) 241 FCR 30 at [51] per Flick, Griffiths and Perry JJ; and SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J.

7. That being so, if legal representation was something the applicant personally felt was necessary to his preparation for, and/or participation in the hearing, that was both his choice and his responsibility to obtain, something for which he ultimately demonstrated an aptitude. 

8. By the Affidavit document the applicant also alludes to having been denied procedural fairness by the Court. The first respondent says that the applicant was plainly aware that the matter was listed for hearing on 7 May 2020 and he was put on notice, repeatedly, by the respondent’s solicitor and the Associate to the then presiding Judge that if he failed to appear, his application may be dismissed. The first respondent says there is no basis for the assertion that the applicant was denied procedural fairness by the Court and/or that this somehow caused his non-attendance at hearing.  I agree with that submission.

9. For the foregoing reasons I do not consider that the applicant’s health, his lack of access to a telephone or a lack of legal representation is a persuasive or satisfactory explanation for the applicant’s failure to attend the hearing on 7 May 2020.  I further do not accept that any of these factors, either individually or cumulatively, put the applicant in any sort of “special” category as was advanced by his solicitor.  Some or all of these factors affect many other applicants in Migration proceedings before this Court who manage to attend their hearings, even during the COVID-19 pandemic.   

10. The lack of satisfactory explanation for the applicant’s failure to attend the hearing weighs against the exercise of the discretion to reinstate the proceedings.

11. I have also had regard to the period of delay between the dismissal of the applicant’s case, which was notified to him the following day (8 May 2020) and the current reinstatement application being made.  That period is slightly more than 5 months.  However, what is also a matter of moment is that the period between the applicant being taken into immigration detention on 12 October 2020 and applying to the Court on 21 October 2020 is relatively short indeed.  Moreso because in that 9 day period the applicant also obtained legal representation and presumably gave instructions so that the current reinstatement application, and the Affidavit document could be prepared. 

12. It is open to me to infer, and I do, that it was only when the applicant was detained that he felt it necessary to seek to reinstate his proceedings.  Further, the brevity of that period also suggests that the applicant was well aware at the time he was taken into detention that his proceedings had been dismissed, given how quickly he then mobilised and was able to seek their reinstatement.  This suggests that the applicant was already aware of the dismissal but elected not to pursue the reinstatement for the purpose of prosecuting judicial review proceedings until it was useful to him for the purposes of regularising his migration status. 

13. These matters also weigh against the exercise of the discretion to reinstate the proceedings. 

    Prejudice

14. The Minister does not claim to be prejudiced by the reinstatement, although there is necessarily some prejudice caused by reason of having to twice deal with a reinstatement application and the expenditure of public funds which attends this, especially against the reasonable expectation that the matter was at an end.  It is trite these days to observe that the Minister had a vested right to retain the benefit of the Tribunal decision in circumstances where the applicant has failed to prosecute his review proceedings, twice failed to attend Court and then allowed 5 months to elapse before seeking reinstatement. 

15. However, given the Minister does not make a specific claim to be prejudiced I will weigh the above matters as being neutral to the question of the exercise of the discretion to reinstate.

    Merits

16. Turning to the merits of the grounds of the substantive application which is sought to be reinstated, the application to show cause filed on 5 October 2018 contains no grounds itself, cross-referring instead to the grounds being contained in the accompanying Affidavit document.  That Affidavit document provides as follows (errors in original):

    5.  The respondent in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness.

    6.  The Second respondent decision included the error of the law. 

    7.  The Second Respondent took into account irrelevant considerations.

    8.  The Second respondent decision was unreasonable.

    9.  The Second Respondent failed to took into account the relevant considerations.

    10.  The decision of the respondent failed meets the refugee law when making the decision.

    11.  I believe the tribunal made an error in coming to its decision due to my inability to prepare and present a proper case and therefore a meaningful opportunity to be heard by denying me procedural fairness.

    12. The Second respondent also made an error by finding that I do not engaged the protections afforded at s.36 (2) (a) of the act therefore misapplying and misconstrued the s.36(2) (a) and s.36(2)(aa).

    13. The Second respondent has not considered each of the integers of my claims of the serious harm discussed with respects to my claims for refugees protection in the context of the complementary protection criterion regarding the real of significant harm at s.36(2)(aa).

    14.  The Second respondents’ conclusion in making the decision is vague and without considering the facts of my country information report.

    15.  The acknowledged difficulties of preparing and presenting my case I am from a different social, ethnic and cultural background and the difficulties I have with English language.  Moreover, I believe the decision maker misinterpreted their obligations to consider representations I made to mitigate my offending behaviour as non-refoulement obligations.

17. The applicant’s solicitor confirmed that the applicant did not seek to amend these grounds.

18. My previous decision in FEH18 makes plain that the matter adjourned on the last occasion because the solicitor for the applicant was not in a position to address the question of the merit of the proposed grounds of review.  Leave was granted to file written submissions largely to rectify this.  It is fair to say that the document which was ultimately filed (Exhibit 1A) did not really rectify the deficiency.  Nor, with respect, were the oral submissions made at the second hearing particularly coherent.

19. After six introductory paragraphs, Exhibit 1A has the heading:

    ARGUMENTS

    APPLICATION TO FEDERAL CIRCUIT COURT (05 October 2018)

20. What followed were two paragraphs which were difficult to understand in context or to reconcile with the grounds of review set out above.  Moreover, those two paragraphs have been taken (without attribution) almost verbatim from paragraphs [83(a)] to [84] (incl) of the decision of the Full Federal Court in ARG15v Minister for Immigration and Border Protection (2016) 250 FCR 109 where the Full Court was in turn summarising the principles pertaining to the judicial review of credibility findings identified in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [36]-[44] per McKerracher, Griffiths and Rangiah JJ.

21. At the second hearing I asked the solicitor for the applicant what purpose these excerpts from ARG15 were intended to serve in relation to the examination of the merits of the grounds of review, to which he responded that he was “trying to reframe this paragraph to establish [his] point”.  Noting that the applicant did not seek to amend the grounds of review, I asked that his solicitor identify for me which of the grounds of review these non-sequitur paragraphs might be said to go to, having regard to the very broad grounds of review, and was told that they went to grounds 5 and 6.

22. When pressed, this submission was progressed by saying that the applicant’s whole case revolves around credibility and the fact that the Tribunal took an overly strict approach thereto when it should instead “have taken the broader view, and the jurisdictional error prevails”.  When asked for further information about the nature of this strict view the applicant’s solicitor said that it was a “[s]trict view regarding the credibility, to find out about the fear of his life, to entitle the protection visa application” and that this was not a submission going to merits review because “the merits and the judicial error is overlapping with very, very sophistication.”

23. With all due respect to the solicitor for the applicant, these submissions remain difficult to understand. I raised my concerns about the lack of quality of these submissions with the applicant’s solicitor at hearing.  To the extent that the matter had adjourned so that the applicant’s case could be better articulated, it ultimately was not - either by Exhibit 1A or by the oral submissions which were made in the course of the second hearing.  This is surprising not only because it falls short of the standard one expects of a legal practitioner in this Court, but also because the applicant’s solicitor was the author of the second reinstatement application and had more than 12 months to prepare the matter for hearing of the same.

24. Even construed generously, the submissions made for the applicant in relation to grounds 5 and 6 do not give rise to a ground which would enjoy a reasonable prospect of success even at an impressionistic level. 

25. While the Tribunal accepted that the applicant was brought up in the Sikh faith and had converted to Dera Sacha Sauda in about 2004 (at [53]), it also had significant concerns about the applicant’s credibility generally (at [40]).  These concerns were grounded by the following:

    (a)the applicant’s own evidence to it at hearing that he lodged a “bogus” Partner visa application after he was detained in February 2017, which it found “may indicate” that at least some of his protection claims may not be genuine or reliable (at [58]);

    (b)information contained in an earlier Tribunal decision relating to a Bridging visa refusal that the applicant had provided a false name or names to Victoria Police in March 2018 (at [63]), which it found was indicative of his willingness to contrive or at least embellish evidence to the Australian authorities (at [67]);

    (c)information given by the applicant to the Minister’s Department at an interview in 2018 that he wished to be removed from Australia and could return to India (at [63] to [64]);

    (d)the applicant’s apparent awareness that his wife (not the sponsor of his “bogus” Partner visa application) had applied for a Protection visa based on the same claimed fear of religious persecution as a member of Dera Sacha Sauda in August 2017 (at [60] to [61]) and the absence of a credible explanation for why he delayed his protection visa application until April 2018 (at [66]); and

    (e)the delay in seeking protection in and of itself, which led the Tribunal to a consideration that the applicant’s claimed fear of harm was not genuine (at [80]).

26. The first respondent submits, and I accept, that while adverse credibility findings are no longer matters solely for the Tribunal par excellence (citing CGQ15 (supra) being the very case the applicant relies upon by way of ARG15) the Tribunal in the instant case provided cogent reasons for its adverse credibility findings.  The applicant’s migration history raised some serious questions about credibility and the Tribunal’s findings were open to it on the material before it.  Accordingly, at even a broad and impressionistic level, I am not satisfied there is sufficient merit to either of grounds 5 and 6 (being the first 2 grounds raised) in the applicant’s Affidavit in support of the originating application, such that reinstatement is warranted so that they could be determined on a final basis, either specifically in relation to credibility findings or more generally in relation to any alleged denial of procedural fairness.

27. The remaining grounds variously allege unreasonableness, failure to take into account (un-particularised) relevant considerations, misapplication of ss 36(2)(a) and/or 36(2)(aa) of the Act, failure to considered (un-particularised) integers of the applicant’s claims, that the decision is “vague” and failure to consider an independent country information report.  Assuming these grounds remain pressed (given that the applicant’s solicitor failed to address them at all), given their complete generality (and on a fair reading of the Tribunal’s decision), I do not consider any of them to be sufficiently arguable on even an impressionistic level to warrant consideration at a final hearing such that I would be persuaded to reinstate the matter.

28. The final ground in the applicant’s Affidavit in support of the originating application (paragraph [15]) may be taken as alluding to an error constituted by an inadequate standard of interpretation.  If that be the intention of this ground, then aside from what is again a completely bare assertion without particularisation, it is well established that in order to establish a jurisdictional error of this nature the onus is on the applicant to provide proper evidence of the same: see SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 per Jacobson J at [31] cited with approval by the Full Federal Court in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [43]. There is nothing before the Court to suggest that the applicant had any difficulty by reason of language, standard of interpretation or any other basis upon which he was not afforded a meaningful opportunity to communicate his claims, evidence and submissions to the Tribunal such that there is any arguable merit to the ground in paragraph [15] at an impressionistic level or at all.

    Conclusion

29. Accordingly, I am not satisfied that any of the substantive grounds of review which would fall to be considered at a final hearing should the matter be reinstated, has sufficient merit or is reasonably arguable such that there would be utility to the matter being reinstated.  Accordingly, the merits of the substantive grounds do not weigh in favour of reinstatement.

30. As a result, and given the lack of satisfactory explanation for the applicant’s non-attendance, the delay in seeking the same and taking the question of prejudice as being neutral, I am overall not persuaded that it is in the interests of the administration of justice to set aside the orders of Judge Riethmuller made on 7 May 2020 to enable the matter to be further heard and determined on a final basis. 

31. Accordingly, the application in a proceeding filed on 21 October 2020 is dismissed. I will hear the parties on costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       9 February 2022