FEDERAL COURT OF AUSTRALIA

FKV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2176

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the Respondent to file the affidavit of Ellen Lucy Goldsworthy Tattersall dated 22 December 2019.

2.    The interlocutory application filed 16 December 2019 be dismissed.

3.    The Appellant pay the costs of the First Respondent of and incidental to the interlocutory application, fixed in the amount of $700.00.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an application filed on 16 December 2019 to reinstate an appeal from a decision of the Federal Circuit Court. The appeal was dismissed on 21 November 2019 in circumstances where there was no appearance by the appellant, no explanation for that absence, no communication to the Court by the appellant, and the Court was unable to contact the appellant to ascertain the reason for his want of appearance.

Background

2    On 11 June 2019 the appellant filed a notice of appeal from the whole of the decision and orders of the Federal Circuit Court in FKV18 v Minister for Home Affairs [2019] FCCA 1572 in which the primary Judge dismissed an amended application for review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa on the basis that the appellant was not a person in respect of whom Australia had protection obligation.

3    On 23 October 2019, the appellant was emailed by Ms Nikki Kavanagh, a Senior Legal Case Manager in the Queensland Registry of the Federal Court of Australia, and was advised that the matter had been listed, and the date and time of that listing. I note that the email was sent to the same email address as that provided in the footer of the appellant’s notice of appeal.

4    When the matter was called at the hearing on 21 November 2019, the appellant did not appear. I asked the Court officer to call the matter outside of the Court room, and the Court officer informed me that there was no appearance. I directed the Court officer to telephone the appellant on the phone number provided in the footer of his notice of appeal, however the appellant did not answer and the call went to his voicemail.

5    At the hearing Mr Kyranis for the Minister tendered evidence of correspondence sent to the appellant on 14 November 2019 from Ms Emily King of Sparke Helmore Lawyers. This correspondence advised the appellant of the date and time of the hearing, and annexed the Minister’s outline of submissions.

6    In light of the above, I am satisfied that the appellant was made aware of the time and date of the hearing.

7    At the hearing, Mr Kyranis for the Minister sought an order that the appeal be dismissed due to the non-appearance of the appellant. I was prepared to make such orders and dismissed the appeal pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

8    On 22 November 2019, the Queensland Registry emailed the parties attaching the orders dated 21 November 2019.

9    On 16 December 2019, the appellant filed an interlocutory application and affidavit seeking the following orders:

1.    An order to set aside the order dated 21 November 2019 by the Judge Collier.

2.    An order that no action is taken to remove the applicant from Australia while the decision is pending.

3.    An order for costs and any further order that this honourable court may deem appropriate.

10    In his affidavit filed 16 December 2019, the appellant deposed that he was unable to attend the hearing because he had a severe cold and flu caused by viruses. He noted that he used “over the counter cold medication”. The appellant further submitted that as he was a litigant in person he was not fully aware of the consequences of the Court hearing.

Reinstatement of proceedings

11    The power of the Court to reinstate proceedings is pursuant to s 25(2B)(bc) of the Federal Court Act 1976 (Cth) which provides:

(2B)    A single Judge (sitting in Chambers or in open court) or a Full Court may:

…

(bb) make an order that an appeal to the Court be dismissed for:

(i)    failure to comply with a direction of the Court; or

(ii)    failure of the appellant to attend a hearing relating to the appeal; or

(bc) vary or set aside an order under paragraph (ab), (ba) or (bb); or

    …

12    The power of the Court to make an order pursuant to s 25(2B)(bc) is clearly discretionary; see for example my decision in Singh v Minister for Immigration and Border Protection (No 2) [2018] FCA 1827.

13    In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, Ryan J considered the criteria for the exercise of such discretion at [7]:

In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

(a)    whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

(b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

(c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement

(emphasis added)

Was there was a reasonable excuse for the appellant’s absence?

14    In BLJ16 v Minister for Immigration and Border Protection [2018] FCA 525, Moshinsky J observed at [4]:

The first factor is whether there is a reasonable excuse for the party’s absence from the hearing. The applicant has provided an affidavit in which he deposes that he could not attend the hearing because of a severe cold and flu caused by viruses. He also states that he used over-the-counter cold medication. No medical evidence or further detail has been provided. I doubt that this material is sufficient, but it is not necessary to decide the current application on this basis.

15    The circumstances before me are clearly similar. In this case, the appellant has made unsubstantiated claims that he was unable to attend the hearing of 21 November 2019 due to a severe cold and flu caused by viruses, and that he used over-the-counter cold medication. The appellant has not provided any medical evidence to support his claim that he was unwell on 21 November 2019 when his appeal was listed, or that he was for reasons of illness unable to attend the hearing of the appeal.

16    At today’s hearing the appellant also reiterated his contention that he was not aware of the consequences of his failure to appear at the hearing of 21 November 2019. However as is made clear from correspondence annexed to the affidavit of Ms Ellen Tattersall dated 22 December 2019, the Minister specifically put the appellant on notice of the consequences of any failure on his part to appear. In particular I note the following statement in a letter of 14 November 2019 from Sparke Helmore to the appellant:

If you do not attend on this occasion, the respondent will seek orders from the court that your matter be dismissed and that you pay the Minister’s legal costs of the proceedings.

17    In my view the appellant’s submission that he was unaware of the consequences of his want of appearance has no merit.

18    In my view, the appellant has not established a reasonable excuse for his absence at the hearing on 21 November 2019.

Will the Minister face prejudice if the proceedings are reinstated?

19    The second question is whether the Minister will face prejudice if the proceedings are reinstated. Given that the appeal was ready to be heard, and the appeal was dismissed only four weeks ago, I am not persuaded at this stage, and assuming that the appeal was conducted on the materials currently before the Court, that the Minister would suffer more than minimal prejudice from reinstatement of the appeal.

Whether the applicant has a reasonably arguable prospect of success on the substantive application?

20    In his notice of appeal filed 11 June 2019, the appellant relied on the following grounds of appeal:

1.    The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The Federal Judge failed to consider that the Tribunal had no jurisdiction because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

3.    The learned judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

21    Further, the appellant sought the following orders:

1.    To set aside the judgement of the Federal Judge Egan dated 28 May 2019.

2.    To remit the matter to the Refugee Review Tribunal to determine according to law.

3.    An order of cost. And any further orders that this honourable court may deem appropriate.

22    I note that the appellant was provided with the opportunity to file submissions in relation to his appeal but did not do so. In light of the unparticularised grounds of appeal, and in the absence of submissions by the appellant supporting those grounds, it is difficult to see any error in the decision of the primary judge.

23    In submissions filed 14 November 2019, the Minister contended that the “unparticularised template grounds do not demonstrate any appellant error on the part of the primary judge or any jurisdictional error in the Tribunal’s decision.” The Minister further contended that the grounds of appeal advanced were identical to those in CUK17 v Minister for Home Affairs [2019] FCA 835; EXB18 v Minister for Home Affairs [2019] FCA 833 and AFQ16 v Minister for Home Affairs [2019] FCA 407.

24    The Minister submitted that the appellant required leave of the Court in relation to ground 1 as it was not raised before the primary judge, and the Minister opposed such leave. Further, in relation to each ground of appeal, the Minister submitted:

24    By ground one, the appellant asserts that the primary judge failed to identify that the Tribunal applied s 91R of the Act in a “manifestly unreasonable” manner. However, the appellant has not identified any finding made or reasoning adopted by the Tribunal that could be said to lack an evident and intelligible justification. The first respondent submits that the bare assertions advanced in this ground rise no higher than an invitation for this Court to engage in impermissible merits review.

25    Further and in any event, the Tribunal’s decision record demonstrates that it considered the appellant’s evidence, engaged in an “active intellectual process” and gave “genuine consideration” to his claims to fear harm, for instance from militant Sunnis groups LEJ and SSP (AB 259-261, [24]-[30]), and because of his status as an Hazara Shia (AB 261-262, [31]-[34]).

26    The first respondent submits that the Tribunal’s decision to affirm the delegate’s decision was a logical result of its numerous and significant concerns with the appellant’s “vague and ill-informed” evidence (AB 260, [27]), the late introduction of new substantive claims (AB 260, [28]) and the lack of corroborating evidence to substantiate his claims (AB 261, [30]) which led to its ultimate conclusion that the appellant was not a truthful or credible witness (AB 261, [35]). The Tribunal was not obliged to accept the appellant’s claims uncritically, as it itself noted (AB 258, [19]). The adverse credibility findings made by the Tribunal were based on rational grounds and arrived at upon consideration of matters that were logically probative. In effect, the Tribunal rejected “the entirety of the applicant’s material claims on the basis that they were fabricated”: AB 262, [37]. Put differently, “the applicant’s application failed because he was not believed”. There is no unreasonableness to the Tribunal’s findings. Leave should accordingly not be granted for the appellant to raise this ground on appeal.

Ground two

27    By this ground, the appellant asserts that the primary judge failed to identify that the Tribunal had no jurisdiction because its “reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act”. Again, the appellant has not identified any finding made or reasoning adopted by the Tribunal that could be said to lack an evident and intelligible justification. The first respondent submits that the primary judge was correct to find that the Tribunal’s findings were open to it based on the country information before it and the adverse credibility findings that it made: AB 296, [19]-[21]. No appellable error, or indeed any error, is revealed.

Ground three

28    Ground three is a bare assertion of error and goes no further than to invite this Court to form its own view of the Tribunal’s decision. Such an approach ought to be firmly rejected. At its highest, the substance of this ground merely cavils with the Tribunal’s factual findings and invites impermissible merits review.

29     Accordingly, the grounds of appeal do not establish any appellable error on the part of the primary judge or any jurisdictional error on the part of the Tribunal. This appeal should therefore be dismissed.

(Footnotes omitted.)

25    I do not consider that the unparticularised grounds of appeal in the appellant’s notice of appeal would support a finding that the appeal had a reasonable prospect of success.

Conclusion

26    I am not satisfied that the appeal should be reinstated. The appropriate order is that the interlocutory application filed 16 December 2019 be dismissed with costs.

27    The Minister has sought an order that costs be fixed in the amount of $700.00, which is less than the amount of costs to which the Minister would be entitled if costs of the application were taxed. In my view this is a reasonable submission and I will order accordingly.

Associate:

Dated:    23 December 2019