FEDERAL COURT OF AUSTRALIA

AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 2 December 2017 be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

TRACEY J:

1    This proceeding was listed before me in Canberra on 18 November 2016. It was an appeal by AAI15 from a judgment of the Federal Circuit Court (“the FCC”) which had been handed down on 15 July 2016. AAI15 did not appear when the matter was called on. The court officer called his name outside the Court and I stood the matter down while a telephone call was made to the number for AAI15 which had been obtained by the Minister’s solicitor. The call was, I was advised, unanswered.

2    In these circumstances I dismissed the appeal pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (“the Act”).

3    By interlocutory application, dated 2 December 2017, AAI15 applied to the Court to reinstate his appeal. The application seeks that:

(a)    the orders made on 18 November 2016 be set aside;

(b)    directions be made for the further conduct of the appeal;

(c)    the appellant be released from Villawood detention centre and granted a bridging visa;

(d)    leave for Mr Satchithanantham Thambiappah (known as “Mr Satchi”) to appear as a McKenzie friend for the applicant;

(e)    leave to file an amended notice of appeal “with additional grounds & additional/new evidence which were not available at the time of the previous hearings held below”; and

(f)    a direction that a copy of the transcripts from the FCC be provided to the applicant because of his present financial hardship.

4    The interlocutory application was supported by two affidavits: one from AAI15 and the other by Mr Thambiappah.

5    Both affidavits were sworn.

6    AAI15 deposed that he had been arrested on 27 September 2017 and placed in the Villawood Detention Centre in New South Wales. He said that he learned, for the first time, when he was in the detention centre that his appeal from the FCC had been dismissed. At [18] he said that:

Until I was arrested, my understanding was that my appeal matter had been with the Canberra court on foot and that my appeal hearing was still pending and not determined as I did not received any communication from my solicitor Mr Owen Harris, from the court, from the Legal Aid and from the Immigration Department.

7    In his affidavit Mr Thambiappah deposed that, in mid-November 2017, he had inspected the Court file relating to AAI15’s appeal. He there found an email from the Registry dated 5 September 2016 addressed to AAI15 at a particular email address.

8    Mr Thambiappah deposed that this was the email address of AAI15’s sister. The email advised AAI15 and the Minister that the appeal had been fixed for hearing on 18 November 2016 at the Federal Court. Mr Thambiappah further deposed that this email address had been “blocked by the Google accounts team on 3 July 2016” and “was completely blocked and not operative from 29/7/2016 until reopened on 10 November 2017”.

9    Later in his affidavit Mr Thambiappah deposed that:

18.    It will be noted that the first respondent failed to notify the appellant, as to the hearing date of the appeal per 13 of the direction that “The lawyers for the Minister notify each other party in writing of the date set down for hearing of the appeal and of the direction”.

19.    It appears that the 1st respondent has deliberately omitted to notify the appellant as to the hearing date, by email notice dated 27 October 2017 and by hard copy of the letter by post, dated 27 October 2016 [per paragraph – 3 above. A true copy of both documents are annexed here with marked as Annexure “D”, per respondent’s representative affidavit of Caraline [sic] Frances sworn on 10 November 2016, “Annexure Certificate “CFB2” which is seems to be misleading to the court.

(Emphasis in the original.)

The reference to “the direction” at [18] of Mr Thambiappah’s affidavit is a reference to directions made by a Registrar of this Court on 11 August 2016.

10    In an affidavit, filed on 1 February 2018, the Minister’s solicitor, Ms Caroline Bush, swore that, in addition to the Registry’s email of 5 September 2016, her firm had, by letter dated 27 October 2016, advised AAI15 that the hearing was listed for 18 November 2016. A copy of the letter was exhibited to her affidavit and it was addressed to the postal address which AAI15 had registered with the Court. It contained a sentence advising that the hearing of AAI15’s appeal would take place at the Court on 18 November 2016 at 10.15 am.

11    A second affidavit was filed on 1 February 2018 by a solicitor who had been acting for the Minister, Mr Kenneth Powell. In that affidavit he identified himself as the person who had made telephone calls to the appellant when he had failed to appear at the Court on 18 November 2016. He deposed that he had twice telephoned AAI15 on a number which was recorded in departmental records. On each occasion the call had gone through to a voice mail service. On each occasion Mr Powell left a message that the hearing was due to commence and that AAI15 should attend the Court.

12    After Mr Powell had returned to his office later that morning he received a telephone call from AAI15. In that conversation Mr Powell advised AAI15 that his appeal had been dismissed because he had not attended the hearing. Mr Powell also told AAI15 that he had previously sent letters and emails relating to the appeal hearing to AAI15. AAI15 acknowledged that he had received some letters but not emails. He confirmed that the address to which the letters were sent was correct.

13    AAI15’s application was listed for hearing on 2 February 2018. When it was called on AAI15 appeared by video link from the Villawood Detention Centre. He had a Tamil interpreter with him. The Minister’s solicitor appeared by video link from Canberra. Mr Thambiappah was present in the Melbourne court room where I was sitting. He asked to be allowed to appear as a “McKenzie friend” for AAI15. Mr Thambiappah said that he was not legally qualified. I pointed out to him that there was a serious logistical difficulty in him adopting the role of a McKenzie friend for AAI15 given their physical separation. Mr Thambiappah then sought to act as an advocate and I advised him that this would not be permitted. He remained in the court room to observe proceedings and, at one point, sought to make some submissions notwithstanding my earlier intimation.

14    As already noted the affidavits of Ms Bush and Mr Powell had only been filed on the previous day. AAI15 confirmed that he had been given copies of the documents and that they had been translated for him by an interpreter that morning immediately before the hearing commenced. Parts of the documents were translated again during the hearing. The affidavits revealed that there were factual disputes that needed to be resolved. In these circumstances I adjourned the further hearing of his application until 16 February 2018 so that he would have the opportunity to obtain such advice as he wished in relation to the Minister’s material and to file any affidavits in response.

15    Prior to the hearing on 16 February 2018 AAI15 advised the Minister’s solicitor that he wished to have Mr Powell made available for cross-examination.

16    At 12.52 am on 16 February 2018 Mr Thambiappah emailed to the Minister’s solicitor and the Court a document which was entitled “Submissions in Reply by the Applicant/appellant” and an affidavit which he (Mr Thambiappah) had sworn on 15 February 2018. This affidavit responded to various matters which had been raised in the affidavits of Ms Bush and Mr Powell.

17    The adjourned hearing resumed on 16 February 2018. AAI15 appeared by video link from the Villawood Detention Centre. An interpreter was present in the court room in Melbourne and translated the proceedings for AAI15. The Minister’s solicitor appeared in Canberra. Mr Thambiappah was also present in the Canberra court room and again, at a number of points, made statements without being granted leave to do so.

18    Mr Powell was called and affirmed. He adopted his affidavit. He was cross examined by AAI15. When asked about the conversation which had taken place on 18 November 2016 Mr Powell said that he had received the phone call from AAI15. He continued:

I recall he spoke to me at the start of the conversation in some limited English, and then shortly afterwards he explained he had a friend with him and his friend would assist him with the conversation and I conducted most of the conversation with the friend and heard them speak in another language while that happened.

AAI15 intervened and said that it was “completely false, to say that he had spoken in English at the beginning of the conversation.”

19    The question of letters previously sent to AAI15’s registered postal address was raised. Mr Powell said that he had told AAI15 that he had previously sent letters to his (AAI15’s) postal address and asked whether AAI15 had received those letters and asked him to confirm whether the addresses were correct. The response which had come, either directly or indirectly, from AAI15, had been: “Yes, I have received some letters from you but not emails, the addresses are correct.”

20    Mr Powell was not shaken in cross-examination. In particular, he adhered to his evidence that he had received a telephone call from AAI15 in the late morning of 18 November 2016. Another person was with AAI15 and appeared to be interpreting what Mr Powell was saying. Mr Powell had told AAI15 that the appeal had been dismissed by the Court earlier in the day.

21    Later AAI15 made a statement that:

This is not acceptable because the other person was a Punjab speaking and he doesn’t know Tamil, I don’t know English and I can’t understand Punjabi so my – I couldn’t have conversed with him; there was no possibility. Thing is – so I think or believe that this response is acceptable to court because he says he can’t remember much and at the same time … and currently says that there was conversation between me and the other person so this is not a satisfactory response or acceptable response for the court.

22    In making this statement I understood him to be asserting that no meaningful conversation took place over a period of some five to 10 minutes because he did not speak English or Punjabi and the person with him at the time did not speak Tamil.

23    AAI15 was later shown the solicitor’s letter dated 27 October 2016. The letter advised that the hearing had been fixed for 18 November 2016. Despite the letter being translated for him AAI15 continued to maintain that the letter did not mention the hearing date.

24    AAI15 acknowledged that he had made the telephone call because missed calls had been recorded by his mobile telephone. He said he did not recognise the number. To find out whose calls he had missed, he had dialled the number which had been recorded. Mr Powell picked up and said something in English which AAI15 could not understand. AAI15 then found a third person outside and asked if he could explain what was being said. He said that the call had gone on for about eight minutes. He reiterated that the person who was with him could not interpret for him because that person was a Punjabi who did not speak Tamil.

25    I accept Mr Powell’s evidence that, at the start of his telephone conversation with AAI15, he had spoken in English. It is implausible that the conversation would have continued for about eight minutes if neither of the interlocutors could understand anything the other was saying or no effective interpretation was occurring.

26    Whilst there may have been some communication difficulties, Mr Powell had managed to convey the fact that the hearing had taken place and that AAI15’s application had been dismissed by the Court that morning and confirmed that AAI15 had received letters sent to him by the Minister’s solicitor.

27    I should also record that I reject Mr Thambiappah’s gratuitous observation that the Minister’s solicitor had “deliberately omitted to notify [AAI15] as to the hearing date”. The contrary was true. The solicitors went to considerable lengths to ensure that AAI15 was alerted to the hearing date. They used an email address that had been given to them and to the Court by AAI15 and they had sent a letter, which AAI15 had received, which contained advice about the hearing date.

28    The Court has power, in an appropriate case, to reopen a proceeding which has been dismissed pursuant to s 25(2B)(bb)(ii) of the Act. That power is to be found in s 25(2B)(bc) of the Act and rr 39.04 and 39.05 of the Federal Court Rules 2011 (Cth): see SZISM v Minister for Immigration and Citizenship (2007) 158 FCR 292; [2007] FCA 61 (Black CJ, Weinberg and Allsop JJ); SZCZF v Minister for Immigration and Citizenship (2009) 107 ALD 138; [2009] FCA 208 (Flick J). The power is discretionary and must be exercised judicially.

29    In exercising that discretion two of the relevant considerations are whether the applicant’s failure to attend at a listed hearing was adequately explained and whether the applicant has a reasonably arguable prospect of success on the substantive application: see, eg, MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] (North J); MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] (Ryan J); Harrison v Secretary, Department of Social Services [2018] FCA 110 at [25] (Flick J).

30    I am not satisfied that the failure of AAI15 to attend the hearing of his appeal has been satisfactorily explained. I do not know what is meant by the term “blocked” in relation to his sister’s email account. I am prepared to assume that it was not operative. If it was not operative then the Court should have been so advised. More importantly, however, I am satisfied that AAI15 was advised about the hearing date by letter sent to the postal address which he had lodged with the Court. Furthermore, he was advised orally of the result of the appeal shortly after the order dismissing it was made. He did nothing in response to that advice. He took no action until after his whereabouts were discovered by departmental officers and he was taken into custody. That did not occur until some 10 months after the dismissal of his appeal. No adequate explanation of AAI15’s failure to attend Court on 18 November 2016 has been provided.

31    Prior to dismissing the appeal I did not consider that the grounds raised in it would be likely to succeed. Having heard the parties on this point I remain of this view. The two grounds relied on have no self-evident merit. The new grounds foreshadowed in his interlocutory application were never identified.

32    AAI15’s first ground was that the FCC erred by not addressing, or incorrectly addressing, the “impermissible burden” arguments put orally by the applicant’s counsel. The particulars were that the FCC did not address the arguments “in relation to MZZSK” or those put by counsel in relation to the Tribunal’s reason at [16], [18] and [23]. I make the following observations.

33    First, the applicant has not provided evidence that an “impermissible burden” argument was in fact made orally: cf NAOA v Minister for Immigration and & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] (Beaumont, Merkel and Hely JJ).

34    Secondly, the applicant’s written submission on an “impermissible burden” was referred to in the FCC’s reasons at [39]. The submission was that the Tribunal had erroneously adopted a process subsequently mandated by s 423A of the Migration Act 1958 (Cth) (“the Migration Act”) which was not in force at the time of the Tribunal’s decision. That section provides that if a new claim or evidence is raised before the Tribunal it is to draw an inference of adverse credibility if satisfied that the applicant has no reasonable explanation as to why it was not raised before the primary decision was made. The submission stated:

Contrary to what the First Respondent has tried to purport, the Applicant actually agrees that the Tribunal is entitled to make a credibility assessment. Rather, it is the Applicant’s contention that the Tribunal’s assessment was based on an invalid process. The Applicant concedes that the legislation has since been amended to mandate the process which the Tribunal undertook. However, the Applicant contends that he is entitled to be judged and measured by the legislation of the day, not by the process introduced in the new section 423A of the Migration Act 1958 (Cth). The Applicant submits that no adverse inference against the Applicant can be drawn from his failure to comprehensively articulate his claims at an early stage in the process. The Applicant did not need to “explain” or “justify” his failure to make a claim or raise evidence at an earlier stage of the process. The Tribunal was obliged to consider all claims and evidence ultimately advanced to it. The Tribunal’s approach placed an impermissible burden on the Applicant. An order in the Applicant’s favour would have enormous utility to his case, even if not to others post section 423A.

(Emphasis added.)

While the FCC did not refer to the term “impermissible burden” it considered the substance of this submission at [63] where it held the Tribunal had not erred in assessing the applicant’s credit and evidence. I can discern no error in the primary judge’s reasons on this point.

35    Thirdly, the Tribunal’s decision record at [16], [18] and [23] contains its reasoning on the applicant’s credibility and evidence. It accepted some of his claims at [20]-[21]. It rejected others at [22] and [27]. It was open for the Tribunal to do so for the reasons upon which it relied. Those reasons included that his claims and evidence differed during the entry, visa application and review stages: at [15]-[19] and [23]-[26]. His explanations, that he suffered from a fever when preparing his statement, that he could not remember some information, that he did not mention everything as it would make his statement “too long” and that he did not raise some matters in his visa application because he thought they were no longer relevant, did not remove the Tribunal’s credibility concerns: at [16]-[17], [24] and [26]. It was permissible for the Tribunal to take this approach even prior to the commencement of s 423A. It did not refer to that provision. It did not otherwise impose any “impermissible burden” of proof.

36    Fourthly, MZZSK v Minister for Immigration [2014] FCCA 883, assuming this was the case to which the applicant referred, has no obvious relevance to the present proceeding. It involved an application for an extension of time for review of a decision of the Tribunal under s 426A of the Migration Act. That section allows the Tribunal to determine an application for review where the applicant is invited, but fails, to appear. The Tribunal erred in its exercise of that power because it had taken into account irrelevant considerations, being discrepancies in the applicant’s claim that he was a homosexual and the absence of supporting material: at [56]-[60]. Section 426A has no application in the present case. At [5] the Tribunal records that AAI15 appeared before it with an interpreter and was represented by a migration agent.

37    AAI15’s second ground was that the FCC erred in its “interpretation of the lack of analysis and ‘weighing up’ by the Tribunal of the Applicant’s submissions in CB212-CB230”. The particulars were that: the Tribunal’s reasons at [31] contain “half a sentence” on the balancing exercise; it was insufficient for the Tribunal “to rely on evidence of its own without arguing why the evidence provided by the visa applicant is not satisfactory”; the fact that the Tribunal has “reviewed a lot of material” does not relieve it “from its obligation to weigh that evidence against that of the Applicant”; and there was no “weighing exercise – there was simply a strong argument in favour of one side of the equation”.

38    The pages of the court book to which the applicant referred contain his submissions on country information made to the Tribunal. He did not identify the information to which it had allegedly failed to refer. At [31] the Tribunal said that it “has also had regard to the information referred to by the applicant’s representative”. I take this to be a reference to the information in his submissions.

39    The FCC considered the applicant’s arguments that the Tribunal had failed to have proper regard to the country information on which he had relied: see at [7], [28], [31], [39] and [57]. The FCC’s reasons for dismissing those arguments appear at [58]-[62]. I do not consider that the primary judge erred in rejecting those arguments.

40    There must be finality in litigation. AAI15 had his judicial review application considered by the FCC. He exercised his right to appeal from that Court’s decision. He was given the opportunity to prosecute that appeal but failed to attend on the appointed day. Despite immediate advice that the appeal had been dismissed he did nothing for 10 months and only made the present application after he had been found and taken into custody. No basis has been demonstrated for challenging the correctness of the FCC’s decision. It should stand.

41    For these reasons AAI15’s application to set aside the orders, made by the Court on 18 November 2016, will be refused. The other orders sought in his interlocutory application were consequential on him succeeding in having the appeal re-opened. The appropriate order is, therefore, that the interlocutory application be dismissed with costs.

Associate:

Dated:    27 July 2018