MZAGB v Minister for Immigration

[2015] FCCA 2772

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAGB v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2772

Catchwords:
MIGRATION – Application for adjournment – application made following long delay – substantive application deficient in merit – no Convention nexus apparent – adjournment not granted – application dismissed.

Legislation:

Migration Act 1958

1951 Convention Relating to the Status of Refugees

Applicant: MZAGB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:  ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1179 of 2014

Judgment of: Judge Burchardt

Hearing date: 27 August 2015

Date of Last Submission: 27 August 2015

Delivered at: Melbourne

Delivered on: 27 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: Not indicated

Counsel for the First Respondent: Mr Brown

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be changed to ‘Administrative Appeals Tribunal’.

2. The Application filed 16 June 2014 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1179 of 2014

MZAGB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter the applicant, by his solicitor, applies for an adjournment of the proceeding.  His solicitor, Mr Gordon, has told the court, and I entirely accept, that he first saw the applicant at 4:00pm yesterday.  He was provided with the Court Book (“CB”), and possibly some other materials.  He has not had the time he would require to form any view as to precisely what amended application he might seek to file, and he seeks time to form such an opinion. 

2. Counsel for the First Respondent opposes the adjournment.  He submits, correctly enough, that the proposed amended grounds of application are not indicated, although I repeat, no criticism redounds to Mr Gordon as to that.  Counsel pointed out that the applicant did not attend either the delegate or the Tribunal hearings, although he appeared at the directions hearing that set this matter down for hearing today. 

3. The reasons that I am going to give now will explain both why I will not grant the adjournment, and why I will dismiss the application.  I should note that Mr Brown submitted, correctly enough, that if the adjournment was not granted, the application was likely to be dismissed.

4. The applicant was, in fact, in the community when he was arrested on a drink-driving charge, and records relating to that are in the early part of the Court Book.  As a result of that arrest he was interviewed by a Departmental officer, and I note that, at CB6, he was asked – and this question, no doubt, sprang from the fact that he had entered Australia on a student visa:

   “Did you ever go to school here? 

   No, I did not.

   Did you ever intend to study here?

   No, I did not. 

   I want to confirm to you, did you say you never intended to study here? 

   Yes my wife did though but I did not see her for six months after I came here.”

5. At CB7 he was asked:

   “Are there any reasons why you cannot return to your home country?” 

   The answer was:

   “No there is no reason, but I am happy over here.  I feel at home here and I don’t want to leave.”

   At CB10 the Departmental officer wrote:

   “I am not satisfied that this person is subject to, or making acceptable arrangements to depart Australia as required by regulation 050.212(2).  Mr Singh stated that he does not want to depart A/a nor is he willing to depart.  Mr Singh stated he would like to remain in Australia and work and study.  Mr Singh has indicated that he would like to lodge a visa to remain here but does not know which visa he wants, and stated any that will allow him to stay.” 

6. At CB27 it is apparent that the applicant’s address since September 2012 has been at 5/15 Logie Street, Oakleigh, Victoria, 3166.  All correspondence relevant to this proceeding has clearly been sent to him at that address, and there is no reason to suppose - bearing in mind that it is, as I understand it, still his address and bearing in mind that it is the address on his application to this court- that he has not received the correspondence he has been sent from time to time. 

7. The applicant did not make arrangements to attend upon the delegate, and I note that at CB97, as part of the delegate’s decision, the delegate referred to the fact that the applicant was interviewed in relation to his bridging visa application on 13 September 2013, and the applicant stated that a friend would organise his return to India.  The delegate said:

   “I consider it significant that the applicant stated in the weeks leading up to the lodgement of his Protection visa application that there were no reasons why he could not return to India and that he has now submitted an application containing minimal information.” 

8. On 7 April 2014 the applicant was sent, at his address, an invitation to appear before the Tribunal.  He did not complete the response document, nor did he attend the Tribunal hearing itself.  The Tribunal analysed the applicant’s claims, relevantly at paragraphs 30 and following (CB 137-138), as follows:

   “30.  The applicant is a Sikh from the Punjab who speaks, reads and writes Punjabi and Hindi.  He has 12 years of education.  He left India to further his study.  He claims he faced attacks many times in India because he is the only son of his parents, and his uncle and cousins want to kill him for his property.  He claims his uncle, who has the police and politicians on his side, gave money to the local mafia to kill him, and will succeed in killing him if he returns. 

   31.  The applicant provides no information as to when the above claimed events occurred, nor, importantly, why, how and when his uncle and relatives became interested in his property.   The Tribunal is unable to appreciate their motives and the strengths of those motives in either seeking his property or seeking to harm him in connexion to their claimed ambitions.  Indeed, he does not give any detail as to what property he claims is in dispute, or is coveted.  In general, his claims are vague and lack any form of convincing detail.

   32.  For all of the above reasons I do not accept that the applicant has presented a credible set of claims for a protection, and I reject those claims in toto, including that he has been, is or will be involved in a dispute with his relatives, family or other persons over property or another matter, where another party has or will threaten him with, or carry out on him, violence, death, or any other form of serious or significant harm.”

9. The applicant attended a directions hearing before Registrar Caporale on 17 September 2014.  At that time he was given until 23 July 2015 year to file any amended application and written submissions.  He would appear not to have made any endeavour to contact his solicitor until the day before the hearing.  That delay is, of course, not in any way explained.  It would be difficult at this stage to see quite how it might be.

10. The first respondent’s written submissions point out that the applicant arrived in Australia on a class TU subclass 572 (student) visa.  That was in 2009.  Notwithstanding telling a departmental officer in 2013 that there was no reason he had to prevent his returning to India, that he felt happy here and was at home here and did not want to leave, the applicant then filed his protection application on 30 September 2013.  Heerey J, amongst others, has pointed out that a court or a Tribunal is entitled to regard the delay in the application for the Protection visa as a relevant matter.

11. In the circumstances where the Court Book reveals the matters to which I have referred, it is immediately apparent that it is wholly inappropriate to adjourn the proceeding.  I accept, and repeat again, no criticism whatsoever redounds to the applicant’s solicitor.  But the applicant has delayed until the absolute last moment to seek legal advice. There is nothing in his grounds of application to the court that articulates, let alone sets out in any convincing way, any asserted jurisdictional error on the part of the Tribunal. 

12. The Tribunal’s factual findings in the circumstances where clearly open to it and indeed, the applicant’s claims as articulated do not seem to me to advance any Convention nexus in any event.  In all the circumstances, including the past history of the applicant’s failure to attend relevant proceedings – and I note that despite being told about this one by his solicitor, he has not attended today- and bearing in mind the weakness and one might say inescapable weakness of his case, it is plainly not in the interests of the administration of justice to adjourn.  So I decline to adjourn and I dismiss the application.

13. So I dismiss the adjournment application.  I also dismiss the substantive application.  The applicant is to pay the first respondent’s costs fixed at $6200.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  12 October 2015