MZAND v Minister for Immigration

[2016] FCCA 3114

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAND v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3114

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – application to this court dismissed for non-appearance – applicant now seeking reinstatement – original application to this court required an extension of time of 13 days – applicant failed to attend interview with delegate – applicant failed to attend Tribunal hearing – open to Tribunal to proceed under s.426A – no arguable jurisdictional error.

Legislation:
Federal Circuit Court Rules 2001, r.13.03C(1)(c)
Migration Act 1958, s.426A

Cases cited:
MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426

Applicant: MZAND

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2282 of 2014

Judgment of: Judge Riley

Hearing date: 14 November 2016

Date of last submission: 14 November 2016

Delivered at: Melbourne

Delivered on: 14 November 2016

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Kylie McInnes

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The application in a case filed on 28 October 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the application in a case filed on 28 October 2016, fixed in the sum of $1,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2282 of 2014

MZAND

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application to reinstate a migration proceeding. The application was dismissed for non-appearance on 13 July 2015 pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001.  The applicant filed an application in a case on 28 October 2016 seeking reinstatement.  The original application to this court was filed more than 35 days after the date of the decision of the Refugee Review Tribunal (“the Tribunal”).  Consequently, the applicant needed an extension of time in which to file the application to this court. 

2. The applicant said in his affidavit, and orally to the court today, that he did not attend court on 13 July 2015 when the matter was dismissed because he was scared of the court process and did not know what to say.  The applicant said that he filed his application to this court late because he was not aware of the time restrictions on filing applications to this court.  He also said that he applied for ministerial intervention.

3. The history of the matter is that the applicant first came to Australia on 8 March 2007 on a student visa.  The applicant was given a number of other student visas.  However, eventually a student visa was refused.  The applicant then sought the protection visa that is the subject of the present application.  A protection visa application was made on             6 December 2013.  It was refused by a delegate on 8 April 2014.  The delegate noted in the reasons for decision that the applicant did not seek to attend an interview with the delegate. 

4. The applicant then sought review by the Tribunal.  The Tribunal wrote to the applicant on 4 July 2014 inviting him to appear before it.  However, the applicant did not respond to the hearing invitation and did not attend the scheduled hearing.  Nor did the applicant contact the Tribunal to seek a postponement of the hearing or explain his failure to attend.

5. The Tribunal proceeded pursuant to s.426A of the Migration Act 1958 (“the Act”) to make a decision without giving the applicant a further opportunity to be heard.  The Tribunal noted that the applicant at that time was a 28 year old citizen of India.  He claimed that he could not return to India because his father had borrowed money for the applicant’s studies in Australia from a landlord.  The father had been unable to repay the landlord.  The landlord had hired the local mafia to collect the money. 

6. The Tribunal considered that the claims the applicant had made in his protection visa application were very brief and lacking in detail.  The Tribunal noted the applicant’s student visa history and also that the applicant had travelled outside Australia twice since arriving in Australia.  On the second of those occasions, the applicant said in his bridging visa application that he would be returning to India.  The Tribunal considered that the applicant appeared to have applied for protection only after exhausting all other options to remain in Australia.

7. The Tribunal considered that the delay in the applicant applying for a protection visa and the fact that he had returned to India at least once detracted from the genuineness of his claims to fear harm if he were to return to India.  The Tribunal considered, in view of the lack of detail in the claims and its concerns about the genuineness of the claims, that there was no real chance that the applicant would be seriously or significantly harmed if he were to return to India.  The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. 

8. The applicant also applied for a skilled provisional visa.  That was refused by a delegate.  The applicant applied to the Tribunal, differently constituted, which affirmed the delegate’s decision on 17 June 2013.  The applicant applied to this court on 10 August 2015 for review of that decision.  He was about two years out of time.  He failed to appear at the hearing in this court on 13 May 2016.  His application was dismissed for non-appearance by Judge McNab.  The applicant then filed a reinstatement application.  That was refused by Judge McNab on 4 October 2016.  The present application for reinstatement was lodged after that on 28 October 2016. 

9. The original application to this court was only 13 days late.  However, the reasons given for late filing are inadequate.  It is not sufficient to delay an application to this court because ministerial intervention has been sought. See for example, MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426. The applicant said today that he did not file in time because he was not aware of the time periods. However, documents provided to the applicant with the refusal decision set out the relevant time periods for the applicant’s benefit.

10. I also do not accept the applicant’s explanation for his failure to appear in this court on 13 July 2015.  The applicant may well have been scared and may well have not known what to say.  However, it was still necessary for him to attend the court. 

11. The more substantive question in both the extension of time application and the reinstatement application is whether there are reasonable prospects of success in the underlying application. That requires there to be an arguable case that there was a jurisdictional error on the Tribunal’s part. The Tribunal clearly invited the applicant to a hearing. There was no suggestion of any defect in the Tribunal’s invitation. The applicant did not attend the Tribunal hearing and gave no explanation for his failure to attend. (It seems to be a pattern of the applicant to not attend hearings. He did not seek an interview with the delegate and did not attend the hearing before this court. Similarly, in relation to his skilled provisional visa application in this court, he failed to appear at the final hearing.) Pursuant to s.426A of the Act, the Tribunal was entitled to make a decision on the material before it in the absence of the applicant.

12. It was reasonably open to the Tribunal to conclude that the applicant’s claims were vague and lacked detail.  It was reasonably open to the Tribunal to consider that the applicant’s claims lacked credibility in circumstances where:

    a)he lived in Australia for many years before applying for a protection visa;

    b)he returned to India on at least one occasion after coming to Australia; and

    c)he only applied for a protection visa when his graduate visa was refused. 

13. The Tribunal has correctly applied the law and does not appear to have taken into account any irrelevant considerations or failed to take into account a relevant consideration.  Although the Tribunal did not give the applicant a hearing, that course was in accordance with the legislation.

14. All in all, I am not satisfied that the applicant has a reasonable prospect of success in the substantive application.  Nor am I satisfied that he has a reasonable explanation for failing to attend court on 13 July 2015 or for filing his application to this court out of time.  Although there would be prejudice to the applicant in the proceeding not being reinstated, I am not persuaded, in all the circumstances of this case, that it is appropriate to reinstate the proceeding.  The application in a case filed on 28 October 2016 will be dismissed.

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

Date: 2 December 2016