MZAMF v Minister for Immigration

[2015] FCCA 2778

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAMF v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2778

Catchwords:
MIGRATION – Show cause hearing – application for adjournment – whether appropriate in view of merits of substantive application – applicant having considerable notice of hearing date – substantive application lacking in merit – application dismissed.

Legislation:

Migration Act 1958, ss.36(2aa), 48

Applicant: MZAMF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2086 of 2014

Judgment of: Judge Burchardt

Hearing date: 28 August 2015

Date of Last Submission: 28 August 2015

Delivered at: Melbourne

Delivered on: 28 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: Not indicated

Counsel for the First Respondent: Mr Hibbard

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

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

2. The Application filed 15 October 2014 be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,416. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2086 of 2014

MZAMF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter, which has been listed for a show cause hearing today, counsel recently engaged upon the half of the applicant seeks that the matter be adjourned.  Mr Gordon tells me that he saw his client only on Wednesday late in the afternoon.  He has only had a very brief time to examining the Court Book (“CB”) and the materials in the proceeding.  He tells me – and, of course, I accept this – that in the very brief time he has had available he has not been able to isolate any immediately apparent jurisdictional error on the Tribunal’s part such as to satisfy the show cause test.  Nonetheless, on other occasions in the past, when given such time, he has indeed been able to isolate such deficiencies.  And he seeks that opportunity.  It should be noted that although instructed by Mr Gordon to attend today the applicant has not done so.

2. Counsel for the first respondent opposes the adjournment, says that the applicant has had all the time he needs, and points to the timetable set by which the matter was brought to court.  He further submits that the application is totally deficient in merit.  I should also mention that Mr Gordon tells me that from what he has been told by his client, it would seem highly likely that the applicant did not understand the order setting the matter down for a show cause hearing.  And I’m prepared to accept that in the applicant’s favour.  That brings us, however, to the application itself.

3. The applicant is seeking a review of a decision of the Tribunal to which I shall come, which affirmed a decision of the delegate not to grant the applicant a protection visa.  The grounds of application are that “the Decision made by Tribunal Member is contrary to Natural Justice”, and that “the Decision made by member has applied procedural no fairness to the applicant particulars”.  However, no particulars are appended.

4. The applicant’s affidavit in support relatively asserts only “ALL INFORMATION IN MY APPLICATION IS TRUE AND CORRECT”.  That application was filed as long ago as 15 October 2014, and on

   
   

   21 January 2015 Registrar Burns made orders setting the matter down for a show cause hearing today.  It is immediately apparent that the applicant has had plenty of time in which to engage lawyers, had that been his desire.

5. I turn now to some of the materials in the CB.  At CB 8-9, and then briefly at 10, the applicant sets out the gravamen of his protection application.  He asserts that he came to Australia with his wife for her studies, but she then changed.  He was trying to save his relationship.  He went back to India to convince his in-laws, but they blamed him for the difficulties.  The applicant asserts, and I quote (CB 8):

   “They said if I didn’t divorce their daughter they will kill me.  They also threaten to my family (sic).”

6. The applicant then goes on to refer to an alleged loan taken out from a local landlord, and threats that that landlord would kill him for failing to repay the loan.  He asserted an incapacity to repay the loan, and that mafia had been sent by the landlord to his home in India.  That was the gravamen of his claims.

7. The applicant did not arrange an interview with the delegate, although the delegate did invite the applicant to provide further information and to attend such an interview.  At CB 71-72 the delegate had the following to say about findings of fact on credibility:

   “The applicant’s claims to fear harm are brief, vague and have not been substantiated.  No documentary evidence has been provided with this application.  The applicant claims he will be harmed by his former in-laws who threatened him in the past with harm unless he divorced their daughter.  However on his application form the applicant has declared that he is divorced, and stated that this occurred in Melbourne on 26 March 2013 (folio 24).  As it seems he complied with their request to divorce their daughter, there now appears to be no basis for why he would be harmed by them if he returns to India. 

   The applicant’s claims in relation to fearing a landlord and owing money are also not made out.  He has made only general statements and has not provided sufficient details of this landlord, the mafia, or the claimed debt he owes.  Neither is there an explanation of how he managed to avoid harm from these people when he did return to India on a previous occasion. 

   Further to providing minimal details in his written application, the applicant was invited to contact the department to further discuss his claims and/or provide additional information, yet he did not do so.  This is inconsistent with a genuine fear of harm. 

   Having considered the applicant’s migration history in Australia and the lack of detail in his claims, it is far more probable, in my view that the applicant only applied for a Protection visa in a last bid attempt to remain in Australia.”

8. Thereafter, the applicant applied to the Tribunal.  And I note that at CB 108-109 – the applicant completed the response to a hearing invitation.  It, therefore, follows that he was aware of the hearing that the Tribunal proposed to undertake.  He did not attend.  The Tribunal’s reasoning was, in many respects, very similar to that of the delegate.  The Tribunal found the claims presented were brief and lacking in detail.  The Tribunal noted the incapacity to test the applicant’s claims at the hearing and to obtain in more detail the amount in terms of the loan he had taken out in related matters.  The Tribunal also noted at paragraph 21 that the applicant had, in fact, divorced his former wife, and thus the articulated claim of fear from her family seemed to have disappeared.

9. The first respondent has filed written submissions which, and in my view correctly, set out the applicant’s visa history in Australia, having regard to the matters in the CB.  The applicant first arrived in Australia on 21 November 2008 as the holder of a Student (Class TU) (subclass 573) visa.  He returned to India on 5 October 2010 and returned to Australia on 11 November 2010.  He has remained in Australia ever since.

10. In March 2011, the applicant lodged an application for a Class TU (subclass 572) visa as dependant. That was granted on 21 April 2011. It was cancelled, however, on 25 June 2013 on the basis that the applicant was no longer a member of the family unit of the main applicant. The submissions infer, in my view, reasonably, that this followed his divorce. He was then declared unlawful, and sought a further Class TU (subclass 472) visa in November 2013. That was barred by s 48 of the Migration Act 1958 (“the Act”) because of his unlawful status.  Only thereafter on 27 November 2013 did he lodge the application for a visa. 

11. In my view, in these circumstances, any assertion that the Tribunal failed to provide the applicant natural justice cannot possibly be sustained.  The Tribunal had invited him to a hearing, which he declined to attend.  Indeed, he declined to attend the court hearing today.  In my view, and for the reasons set out in the first respondent’s submissions, there was no breach of natural justice in the Tribunal proceeding to hear and determine the matter.  The applicant had had two opportunities, both before the delegate and the Tribunal, to put his case forward, and failed to do so.

12. Furthermore, the Tribunal’s reasoning, albeit it on a relatively rapid reading, shows no possible want of understanding of the relevant tasks that the Tribunal was to undertake. It was to evaluate the applicant’s claim under the Convention and the complementary protection regime in s 36(2aa) of the Act.

13. The Tribunal was, on the materials as I see it, correct to form the conclusions it did.  A further aspect of the matter not touched on by the delegate or the Tribunal is that it is by no means easy to discern any Convention nexus in the matters claimed in any event.  One is a claim of family violence from his former wife’s family.  The other is a claim of possible risk from a money lender who acted in a criminal way. 

14. I note there is a reference in the CB to authorities such as the police and political people not listening to poor people.  It might have conceivably been the case that the applicant might have articulated some claim as a poor person being a social class within the meaning of the Convention.  But the only reason that possibility has never gone anywhere is the applicant’s failure himself to articulate it and properly to participate in the proceedings.

15. In the circumstances, in my view, there is no utility to an adjournment, because the applicant’s case is, indeed, hopeless, notwithstanding

    
    

    Mr Gordon’s perfectly proper and valiant endeavours.  I decline to adjourn the proceedings, and I’m going to dismiss the application.

RECORDED : NOT TRANSCRIBED

1. The applicant to pay first respondent’s costs fixed on scale at $3,416.  One other thing I didn’t mention in my reasons, but that I’ve also had regard to is that the delegate pointed out that there had been a lengthy delay in the application.  It has been pointed out by Heerey J and others that it is not unreasonable, in circumstances where applications for protection visas are made very late in the day following a lengthy period of time in Australia after other visa holdings, to infer if the matters said to give rise to the protection application predated arrival in Australia, the delay only intends to reinforce that the application was not bona fide.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  28 August 2015