MZALP v Minister for Immigration - [2015] FCCA 3586

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZALP v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3586

Catchwords:
MIGRATION – Application to reinstate proceedings – Protection (Class XA) visa application – application dismissed – no matters of principle.

Applicant:

MZALP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1979 of 2014

Judgment of:

Judge Riethmuller

Hearing date:

17 December 2015

Date of Last Submission:

17 December 2015

Delivered at:

Melbourne

Delivered on:

17 December 2015

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Counsel for the First Respondent:

Mr Brown

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

n/a

Solicitors for the Second Respondent:

n/a

ORDERS

The name of the Second Respondent be amended to the Administrative Appeals Tribunal
The Application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $1250.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1979 of 2014

MZALP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application to reinstate proceedings that were dismissed as a result of the applicant’s failure to attend at court. It remains unclear to me precisely why the applicant said that he didn’t attend, although it was effectively that he didn’t get notice of the court date. When the directions hearing was held, the court date wasn’t available and so wasn’t inserted in the orders made in the directions hearing but subsequent notices went from the court to the parties.
Regardless of whether the applicant received the notice from the court, there’s no doubt he received notice from the lawyers for the Minister in the email in which they enclosed their written outline of submissions sent to his email address. The applicant didn’t appear in court and it is difficult to conclude that he has established a reasonable explanation for his failure to appear. However, given that this is a refugee claim, it would be an exceedingly rare case where the failure to establish a good reason for failing to attend would cause an applicant to fail to have a arguable case reinstated.
The more substantive issue is whether or not he has an arguable case.
The tribunal decision was made after two attempts to have hearings with the applicant and his advisors which both failed. On the first occasion, a date was set with arrangements in place for the applicant and his advisor to attend and before that first hearing date the applicant’s representative advised the tribunal that the applicant had a severe viral fever and wouldn’t be able to attend at the hearing. A medical certificate was produced and the hearing was put off to another date.
On the second occasion, the advisor or representative attended but the applicant didn’t and attempts to telephone the applicant were unsuccessful (see paragraphs 9 to 11 of the tribunal’s reasons for decision). Not surprisingly, following these events, the tribunal proceeded to make a decision based up on the written material. The applicant’s case was briefly set out but most importantly the tribunal stated:
[21] The Tribunal considers the applicant's claims to be vague and unsubstantiated. He does not provide dates or even approximate times for any of the events he describes, nor does he provide the names of any the protagonists other than the first name of his girlfriend, Jyothi. He gives no details or how or when he commenced his relationship with Jyothi or how long it lasted. He claims to have been subjected to a 'street court' but gives no details of how that court operated or what it decided. He claims that his relationship with Jyothi prompted two riots but gives no details of when these occurred or his involvement in those riots. He claims that his parents both committed suicide but doesn't say when or whether this relates to his claims. Had the applicant attended the scheduled hearing the Tribunal would have asked the applicant about these and other matters. In his protection visa application form he states that he will provide his parents' and girlfriend's death certificates and evidence of the attack on him, however those documents have not been provided to the department or the Tribunal.
[22] On the basis of the very limited evidence before it, the Tribunal cannot be satisfied that the applicant has suffered harm or mistreatment in the past from his girlfriend's family or Hindu extremists, nor that there is a real chance that he would be subjected to harm or mistreatment from those persons or any other persons on the basis of his relationship with Jyothi if he returned to India now or in the foreseeable future. Therefore the Tribunal does not accept that the applicant faces 'serious harm' such as could amount to persecution as claimed by the applicant. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason if he returns to India, now or in the reasonably foreseeable future. As such, it is not necessary for the Tribunal to consider whether it might be reasonable for the applicant to relocate to another part of India where he might be protected.
That is, in substance, the tribunal, in the absence of being able to hear evidence directly from the applicant, was not satisfied to the requisite standard on the material and therefore dismissed the applicant’s application.
This finding is against a background where the applicant had failed in his application before the delegate, again in circumstances where he hadn’t attended.
The applicant’s grounds for judicial review in these proceedings are, in substance, that the applicant wasn’t given a proper opportunity to be heard. It is difficult to see how, on the material before me, it could be said that the applicant was denied a reasonable opportunity to be heard in this case, given that the tribunal adjourned the hearing on one occasion to allow the applicant an opportunity to be heard and on the second occasion his representative was there but he didn’t attend.
The grounds of his application that are specifically set out in his formal application in this court are numbered one through 13. The grounds themselves do not identify errors of law on the whole but rather summarise in dot point form the substance of the case that he was seeking to put. To that extent, they really are simply a merits review claim and a claim for merits review cannot succeed in this court.
It is only item 12 that appears to identify an error of law which is the ground that relates to whether or not the tribunal allowed him an opportunity to be heard. Whilst it’s not perfectly well-stated, it seems that’s the substance of that ground, in any event.
Counsel for the Minister sets out in their submissions an argument that the applicant had failed to attend before the delegate and given proper opportunities to attend before the tribunal and did not do so and therefore it was permissible for the tribunal to proceed in his absence and that ultimately he failed before the tribunal on the merits of the matter, not on the basis of any error of law or process. In these circumstances, it does not appear to me that the applicant has raised an arguable case.
As the applicant has not raised an arguable case, it’s not appropriate to set aside the order dismissing the proceedings. I therefore refuse the current application.
In the circumstances, the applicant being entirely unsuccessful, it’s appropriate that the Minister have his costs, and having regard to the scale the sum sought appears to me to be reasonable. I fix costs at $1250 and order that the applicant pay the respondent’s costs.
I also order the second respondent’s name be changed to the Administrative Appeals Tribunal.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 19 February 2016