ACB17 v Minister for Immigration and Border Protection [2018] FCA 237

FEDERAL COURT OF AUSTRALIA

ACB17 v Minister for Immigration and Border Protection [2018] FCA 237 Appeal from: ACB17 v Minister for Immigration and Anor [2017] FCCA 1880

File number: QUD 415 of 2017

Judge: LOGAN J

Date of judgment: 14 February 2018

Catchwords: MIGRATION – application for extension of time – failure to appear – application for dismissal for want of prosecution - no prospect of success – dismissed.

Legislation: Migration Act 1958 (Cth) ss 36(2A), 91R, 424A, 424AA

Date of hearing: 14 February 2018

Date of last submissions: 7 February 2018

Registry: Queensland

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 10

Counsel for the Appellant: The appellant did not appear

Counsel for the Respondents: Mr A Psaltis

Solicitor for the Respondents: Clayton Utz

ORDERS QUD 415 of 2017

BETWEEN: ACB17 Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: LOGAN J DATE OF ORDER: 14 FEBRUARY 2018

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent, of and incidental to the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J: 1 The appellant is a citizen of India. He arrived in Australia on a Subclass 771 (Transit) visa on 22 June 2015, from New Zealand. He had earlier travelled to New Zealand on a Student visa. On 24 July 2015, the appellant applied to the Minister for Immigration and Border Protection under the Migration Act 1958 (Cth) (the Act) for a Protection visa. 2 In essence, his claim for that visa was grounded in a fear of death or harm arising from the National Students Union of India. A delegate of the Minister refused the application for that visa. The appellant then sought the review of that decision on the merits by the Administrative Appeals Tribunal (Tribunal). At the Tribunal hearing the appellant added to the basis of his original claim a claim that he also feared harm from youth members of the Akhil Bharatiya, Vidhayarthi, Parisad, and that he feared discrimination and worse due to political unrest between India and Pakistan. 3 On 6 December 2016, for reasons given in writing, the Tribunal decided to affirm the decision of the Minister's delegate not to grant the applicant a Protection visa. The Tribunal made comprehensive findings based on an assessment of the appellant's credibility. The appellant then sought the judicial review of the Tribunal's decision by the Federal Circuit Court. There were three grounds of review pleaded: (1) the Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Act; (2) the Tribunal did not issue any written invitation under s 424A of the Act and made no attempt to and did not comply with the requirements set out in s 424AA of the Act; (3) the tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Act. The Federal Circuit Court found no merit in any of these grounds. That court on 9 August 2017 dismissed with costs the appellant's judicial review application. It is from that order of dismissal that the appellant has now appealed to this Court. 4 On 22 December 2017 the registrar sent by email to each of the parties a notice of listing. That notice notified that the appeal would be heard today at 10.15 am. When the appeal was called on at that time there was no appearance by or on behalf of the appellant. Upon that event, the Minister then sought the dismissal of the appeal on the basis of want of prosecution. 5 The appellant's failure to appear was not entirely unheralded. Yesterday afternoon, he sent by email a note to the Registrar in which he stated that he would not be able to attend this morning at the appointed time because a friend who was going to give him a lift could not get away from work until 1.30 pm. He asked that the case be heard this afternoon. The Registrar informed the appellant in reply sent by email yesterday afternoon that he may be in jeopardy of the dismissal of his appeal in the event that there was a failure to appear today at the appointed time. As it happens, there is another appeal listed this afternoon. 6 The appellant's email of 13 February 2018, can be regarded both as an application for an adjournment together with an explanation for that application. That explanation is not, of course, either sworn or affirmed. That aside, it is noteworthy for the absence of any detail as to why in the period of some six weeks which have passed since the despatch and, inferentially, receipt of the listing notice, no other means of attendance at the court was organised by the appellant. 7 It is relevant in determining the fate of the Minister's application to take into account the prospective merits of the appeal. As to that, there are two grounds pleaded. They are: (1) that the Federal Magistrate Court failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant's claim, in particular ignoring the aspect of persecution and harm in terms of s 91R of the Act; (2) the Federal Circuit Court dismissed the case without considering the legal and factual errors contained in the decision of the Tribunal. 8 As to the latter ground, it is cast at such a level of generality as to be devoid of meaningful content. It is apparent from the reasons for judgment delivered in the court below that that court engaged comprehensively with each of the pleaded grounds of review. It is a noteworthy feature of the appeal that it does not seek to quibble with the conclusions reached in respect of those grounds of review, but rather to raise an additional ground, namely, Ground 1. This would require a grant of leave. As to that, s 91R had been repealed prior to the lodgement of the appellant's visa application. That aside, the Tribunal's reasons for decision amount to nothing more or less than a logically reasoned basis for why it is that the Tribunal was not satisfied as to the foundation for the claim made in the visa application. 9 The Tribunal was entitled to reach the conclusions it did. The Federal Circuit Court found as much, amongst other things. 10 In short, then, there is no prospect of success in respect of the appeal which would persuade me notwithstanding the informality of the adjournment application and generality and inadequacy of explanation for an adjournment, that the case is one for other than dismissal. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.