GGR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 73

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GGR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 73

File number(s):	SYG 3353 of 2018
Judgment of:	JUDGE HUMPHREYS
Date of judgment:	11 February 2022
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for reinstatement – no reasonable excuse for non-attendance – no merit to substantive application – application for reinstatement dismissed.
Legislation:	Federal Circuit Court Rules 2001 (Cth), r.13.03C
Cases cited:	Abebe v Commonwealth of Australia (1999) 197 CLR 510 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 Fox v Percy [2003] HCA 22 Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929  MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division:	Division 2 General Federal Law
Number of paragraphs:	28
Date of last submission/s:	9 February 2022
Date of hearing:	9 February 2022
Place:	Parramatta
Counsel for the Applicant:	In person
Solicitor for the Respondents:	Ms Kelly

ORDERS

SYG 3353 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GGR18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	11 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.

2.The application is dismissed.

3.The applicant is to pay the first respondent’s costs fixed in the sum of $1500.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant claims to be a citizen of India. On 22 December 2014 the applicant applied for a Protection visa. On 24 December 2015, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Protection visa.

2. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). On 9 November 2018, the Tribunal affirmed the decision of the delegate not to grant the applicant his visa.

3. The applicant sought judicial review in this Court. On 14 January 2019, the applicant failed to appear before Registrar Cho. The application was dismissed pursuant to

   
   

   r 13.03C(1)(c) of the then then Federal Circuit Court Rules 2001 (Cth). The applicant was also ordered to pay the First Respondent’s costs fixed in the sum of $1,495.00.

4. On 14 December 2020, the applicant applied for the reinstatement of his matter. THE LAW

5. The relevant principles in relation to reinstatement are conveniently set out in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. Reinstatement is discretionary and 3 factors should be considered:

   a)   Whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   b)   The existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assigned by an adjournment, an order for costs or other relief which the Court is empowered to Grant;

   c)   Whether the applicant has a reasonably arguable prospect of success on the substantive application… If not, then there is no purpose in reinstating.

6. To the above factors, the Court would add in this case the reasons for the delay between the application being dismissed and the application for reinstatement.

   THE APPLICANT’S CASE

7. The applicant appeared before the Court unrepresented.  The applicant was assisted by a Hindi interpreter.  The applicant’s application for reinstatement was accompanied by an Affidavit affirmed on 1 December 2020.  This Affidavit did not contain any material which provide information on the three factors listed above. No further material was filed in support of the application.

8. At the commencement of the hearing the Court explained what the hearing was about, the matters that the Court would consider in a reinstatement application and the procedure the Court would follow in conducting the hearing.

9. In relation to why the applicant failed to appear before Registrar Cho, the applicant told the Court that he had no knowledge that the matter was listed on 14 January 2019. It was put to the applicant that the first return date was contained on the originating application on the filing cover sheet and this would have been sent to him when the application was accepted. The applicant stated that he did not speak or read English, did not have a lawyer at that point in time and did not check his email or if he did so, he did not realise that this was a listing date that required him to appear.

10. In terms of the delay in seeking to reinstate the matter, the applicant said that he only made inquiries with the Court when he sought to renew his Indian passport. That was in September 2020. An email from the Court file shows that the applicant was then advised his matter had been dismissed. The applicant was then asked why it subsequently took three months for him to file an application for reinstatement. The applicant said that he had no money, no lawyer, and no knowledge of what to do.

11. When asked about the merits of the grounds of judicial review relied upon, the applicant replied that he had no knowledge and that the Court could figure it out for itself.

12. The grounds of judicial review in the applicant’s initial application are as follows:

    1.   That the Tribunal’s decision was affected by jurisdictional error for not considering a claim or component integer thereof, namely that the applicant had a well-founded fear of persecution in India due to his homosexuality;

    2.   That the tribunal erred in law in rejecting the applicant’s evidence without proper assessment or consideration or proof;

    THE FIRST RESPONDENT’S CASE

13. The legal representative for the first respondent properly conceded that there was no real prejudice to the Minister other than costs. However, this of itself was not a reason to allow reinstatement.

14. Based on the grounds of judicial review in the application, it was submitted that the applicant did not have reasonable prospects of success in the substantive application.

15. The Tribunal considered at length the applicant’s claims in relation to his sexual orientation, but then rejected them. Ground one has no prospects of success. Ground two also has no reasonable prospects of success.

16. The decision record of the Tribunal goes into considerable detail as to the applicant’s claims. The decision record details the evidence before it, including that before the delegate, that given orally in the hearing, and in post hearing submissions. The decision record made appropriate reference to relevant country information.

17. The Tribunal had serious concerns as to the claims made by the applicant as to his sexuality given inconsistencies in his various accounts as given to the delegate and to the Tribunal. The Tribunal is not bound to accept any and all claims made by and applicant uncritically and does not require rebuttal evidence before rejecting an applicant’s claims. The findings, including those as to credit, were open to the Tribunal for the reasons it gave based on the evidence that was before it.

18. There was nothing to suggest that the Tribunal had failed to conduct a proper assessment of the applicant’s claims. No claim or integer thereof was not considered.

19. It was submitted that the applicant’s reasons for not attending the hearing on 14 January 2019 and the delay in lodging an application for reinstatement were not reasonable given his evidence to the Court

    CONSIDERATION

20. The applicant told the Court that the reason for his non-attendance on 14 January 2019, before registrar Cho, was that he was not aware that this was a date that he was required to appear. The Court does not accept that reason.  No material has been provided to the Court that indicates that the applicant was not aware of the date.  No evidence has been provided to the Court to indicate that the applicant was unwell or that there was any other extraneous reason which prevented the applicant from attending the Court.  The applicant’s explanation lacks significant credibility and the Court does not accept it. This mitigates against reinstatement.

21. In relation to the prejudice caused to the first respondent, the Court notes the proper concession made by the first respondent’s legal representative that there is no real prejudice to the Minister.  However, this is not the end of the matter. In Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 at [62], the following was said:

    … there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible.

22. There is also a significant public interest in the finality of administrative decisions. In Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 at [15] the following was said:

    An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties.  That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.  Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered.  Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

23. In the Court’s view, no adequate reason has been provided by the applicant as to the delay of nearly two years in seeking reinstatement of his matter.  The delay mitigates significantly against reinstatement.

24. In relation to the final matter, being the prospects of success of the substantive application, the Court is not satisfied the applicant, even on an impressionistic basis, has reasonable prospects of success. A perusal of the decision record indicates that the Tribunal considered the applicant’s claims in detail but rejected them on the basis of his credit.  No claim or integer thereof was not considered.

25. The Court is satisfied that the Tribunal’s findings were open to it on the evidence, and the materials before it for the reasons it gave, including its adverse credibility findings.  Those findings were not tainted by any failure to afford procedural fairness, nor was the decision reached without a logical or probative basis or unreasonableness: (see; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83]). It is well-established the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: (see; Fox v Percy [2003] HCA 22 at [41]).

26. Further, each of the grounds of judicial review are not supported by particulars.  For that reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). If anything, the grounds of judicial review merely express a vehement disagreement with the conclusions of the Tribunal. The applicant’s complaints, such as they are invite merits review which the Court cannot undertake: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53-54]).

    DISPOSITION

27. Given the Court is not satisfied as for the reasons for the non-appearance of the applicant on 14 January 2019, the lack of any real reasons for the extensive delay in lodging the application for reinstatement, the prejudice to the Commonwealth in terms of the finality of litigation in this matter and a lack of merit in the substantive application even on an impressionistic basis, the application for reinstatement is rejected.

    CONCLUSION

28. Accordingly, the application is dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Deputy Associate:  

Dated:       11 February 2022