Federal Court of Australia

ARX18 v Minister for Home Affairs [2020] FCA 1351

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is refused.

2.    The Applicant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

1    The applicant is a citizen of Malaysia who arrived in Australia in March 2017. She seeks leave to appeal from an interlocutory order of the Federal Circuit Court (FCC) made 24 October 2019 which refused her application for reinstatement of a proceeding in that Court. The proceeding sought judicial review of a decision of the Administrative Appeals Tribunal made on 16 January 2018 affirming the decision of a delegate of the first respondent, the Minister for Home Affairs, not to grant her a protection visa pursuant to s 65 of the Migration Act 1958 (Cth) (the Act). The proceeding was initially dismissed because the applicant failed to appear at a scheduled show cause hearing. The reinstatement application was refused because the primary judge found that the grounds of review did not raise an arguable case for the relief sought.

2    For the reasons I explain the application for leave to appeal must be refused.

Background and procedural history

3    The applicant is a citizen of Malaysia who arrived in Australia on 8 March 2017 on an Electronic Travel Authority visa. On 10 May 2017 she lodged an application for a Protection (class XA) visa in which she identified the following matters:

(a)    she came from a poor family in a small town;

(b)    she was married with two children;

(c)    her husband “had a problem at his work place” which meant that he could not work;

(d)    her husband was subsequently “diagnosed with anemia hemoragi, hypertrophic cardiomyopathy and hypertension”;

(e)    because of her husband’s health issues, she had to work to support her family;

(f)    she hoped that working in Australia would give her enough money to support her husband’s medical treatment; and

(g)    she could not go back to Malaysia because she would not earn enough money to support her family.

The delegate’s decision

4    On 17 August 2017 a delegate of the Minister refused to grant the applicant the visa and gave reasons. The delegate identified the applicant’s claims for protection and after considering relevant country information concluded that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act.

The Tribunal’s decision

5    On 1 September 2017 the applicant applied to the Tribunal for a review of the delegate’s decision. Following a hearing at which the applicant was assisted by a Malay interpreter, on 16 January 2018 the Tribunal affirmed the delegate’s decision not to grant the applicant a visa and gave reasons for its decision.

6    The learned primary judge summarised the Tribunal’s reasons (at [10]-[12]) as follows, and I respectfully adopt that summary:

The Tribunal considered the applicant’s claims of economic and family hardship: [15]-[19]. The Tribunal accepted that while the applicant may have come from modest circumstances, her family was not underprivileged in a general sense: [16]. The Tribunal accepted that the applicant’s husband was no longer working due to medical ailments, and that their extended family only had limited income.

However, the Tribunal was not satisfied that the family’s economic circumstances, considered cumulatively and also taking into account any associated psychological pressures, involved serious harm amounting to persecution as required by the Act: [18]. In its assessment of the refugee criterion, the Tribunal found that even against the backdrop of her husband’s health problems and her children’s expenses, the applicant’s economic pressures did not result in serious harm such as to attract protection obligations by Australia: [21].

For those reasons, the Tribunal found that the applicant did not meet the refugee criterion in s 36(2)(a) or the alternative criterion in s 36(2)(aa) of the Act and affirmed the delegate’s decision not to grant her a Protection visa: [27]-[30].

The Federal Circuit Court

7    On 19 February 2018 the applicant filed an application in the FCC seeking judicial review of the Tribunal’s decision. On 12 December 2018 the FCC made orders by consent listing the matter for a show cause hearing on 16 October 2019 at 2:15 pm. When the proceeding was called on for hearing there was no appearance by or on behalf of the applicant. An order was made dismissing the application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2011 (Cth).

8    Sometime later the applicant arrived at the registry apparently stating that she had been present at court at 2:15 pm. Whether that was so or not, arrangements were made for a hearing on 18 October 2019, listing it as an application for reinstatement.

9    The primary judge heard the reinstatement application on 18 October 2019. On 24 October 2019 his Honour made orders to dismiss the application and published reasons.

10    The primary judge noted (at [18]) that when an applicant does not appear at a hearing the court may dismiss the application pursuant to rule 13.03C(1)(c), and (at [19]) that the court may set aside an order made in the absence of a party pursuant to r 16.05(2)(a).

11    His Honour identified the applicable legal principles relevant to the exercise of the discretion to reinstate a proceeding (at [20]), citing with approval the decision of Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4], where her Honour explained:

…the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.

12    The primary judge said (at [21]) that on an application for reinstatement the threshold which is applicable to consideration of the merits of the application is whether the grounds for judicial review are shown to be ‘arguable’. His Honour cited CAL15 at [6] where Mortimer J said:

The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.

(Emphasis added by the primary judge.)

13    His Honour said (at [23]) that the assessment as to whether a ground of review is arguable is evaluative, and cited the decision in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [10] where Ryan J explained that the decision whether or not to reinstate a proceeding is “essentially discretionary” and so attracts the principles in House v King [1936] HCA 40; (1936) 55 CLR 499 at 504 to 505 (Dixon, Evatt and McTiernan JJ).

14    The primary judge then turned to consider whether either of the two grounds of the application for judicial review were reasonably arguable.

15    His Honour considered the first two of the factors explained in CAL15 by noting that the Minister accepted the applicant’s explanation for the non-appearance, and the Minister did not suggest that he would suffer any prejudice if the matter were to be reinstated. His Honour then turned to address whether either of the two grounds of the application for judicial review were arguable.

16    Ground 1 of the application alleged:

I am requesting due to I am not satisfied with the decision of AAT. It is because I have provided my evidence and I felt I have been neglected by the AAT.

The primary judge said that was not a proper ground of review but merely a submission or statement of dissatisfaction with the Tribunal’s decision and demonstrated no more than her emphatic disagreement with it (at [32]-[33]). His Honour considered it did not identify any jurisdictional error on the part of the Tribunal, and to the extent that the applicant contended that the Tribunal should have come to a different factual conclusion on the evidence the complaint, in substance, sought impermissible merits review. His Honour concluded that Ground 1 did not raise an arguable case for review (at [34]).

17    Ground 2 of the application alleged:

I am requesting due to I am not satisfied with the translation from the interpreter.

The primary judge noted that the ground was not informed by any particulars and that the applicant had not filed an amended application, further affidavit or an outline of submissions (at [36]-[38]). The applicant had not explained why she was dissatisfied with the quality of the interpreting or how this may have had any impact upon her ability to participate in the hearing. His Honour also found that the applicant had not filed any evidence that identified any deficiencies in the standard of translation provided, and said nothing as to that issue during the hearing of the reinstatement application. There was nothing in the materials to suggest that the applicant received inadequate translation or was otherwise denied a real or meaningful opportunity to participate in the hearing before the Tribunal. His Honour concluded that Ground 2 did not raise an arguable case for review (at [41]).

18    His Honour also considered the Tribunal’s decision more generally. His Honour held the Tribunal’s findings of fact in relation to the applicant’s claims and evidence were open on the materials before it (at [39]). In relation to the applicant’s claim of economic hardship his Honour said (at [40]) that a threat to subsistence as referred to in s 5J(5)(d) of the Act must be at a level that challenges the ability of the individual to continue to exist or remain in being, and the hardship must be such that it would actually threaten the applicant’s capacity to subsist, citing SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143 at [11]; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725 at [23]; MZYPB v Minister for Immigration and Citizenship [2012] FMCA 226, [13]. His Honour considered that the Tribunal’s findings that the applicant’s circumstances did not satisfy s 5J(4)(b) were open, and that such findings flowed logically from the Tribunal’s assessment of the material before it. In his Honour’s view there was nothing in the Tribunal’s reasons or in the court book to indicate any irrationality or illogicality in the Tribunal’s decision or approach.

The application for leave to appeal to this Court

19    On 4 November 2019 the applicant filed an application for leave to appeal in this Court. The application alleges the following grounds:

(a)    her proceeding was dismissed because she was 15 minutes late to the show cause hearing;

(b)    she was late for the hearing because of a road accident on Princes Highway and because she could not get a park. She could not go any faster because of the road laws; and

(c)    when she reached the FCC she was unaware that she was late. She seeks the Court’s forgiveness, and asks that it be taken into account that she lacked knowledge in relation to court procedures.

20    In an affidavit sworn 4 November 2019 in support of the application for leave to appeal the applicant reiterates the reasons why she was late for the scheduled hearing and again apologises for her lateness that day. She also states that:

(a)    her husband and her two children are back in Malaysia and they totally rely upon her financial support;

(b)    her husband has been diagnosed as suffering from drug-related depression and is being treated for that;

(c)    her two children are still at school; and

(d)    her claim to need protection in Australia is genuine and she has evidence to support that claim.

21    The draft notice of appeal filed with the application sets out one proposed ground of appeal as follows (without correction):

Federal Circuit Court had finalised to dismiss my case because I was late to show cause hearing. I was in a unavoidable situation that cause me to be late for my hearing. I was late 15 minutes because of the traffic and could not get a parking.

22    By orders made on 14 November 2019 the applicant was directed to file and serve a written outline of submissions upon which she seeks to rely in support of the application and in support of any appeal were the court to grant an extension of time and/or leave to appeal. She did not do so.

23    By an email on 30 April 2022 to National Registrar McCormick, copied to the applicant, the solicitors for the Minister said that the matter was appropriate to be determined on the papers, without the need for an oral hearing. On 8 May 2020 the applicant responded indicating that she was content with that course. On 24 July 2020 I made orders for the applicant to file a written outline of submissions by 5 August 2020 and for the application for leave to appeal and any appeal (if leave is granted) to be determined on the papers. Again the applicant did not file written submissions.

Consideration

24    An order dismissing an application to reinstate proceedings is interlocutory in nature: MZXQQ v Minister for Immigration and Citizenship [2008] FCA 250 at [15]. The applicant therefore requires leave to appeal: ss 24(1)(d) and 24(1A) of the Federal Court of Australia Act 1976 (Cth).

25    The test as to whether leave to appeal should be granted is whether:

(a)    the decision giving rise to the orders from which the applicant wishes to appeal is attended by sufficient doubt as to warrant reconsideration on appeal; and

(b)    substantial injustice would result if leave were refused, supposing the decision to be wrong:

Décor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 844; (1991) 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ). Because the decision of the primary judge was discretionary (see MZYEZ at [10]) it attracts the well-known statement of principle in House v King at 504 to 505.

26    Whether the primary judge’s decision is attended by sufficient doubt as to warrant reconsideration turns upon whether the proposed grounds of appeal are reasonably arguable. As the primary judge noted, what is required is an examination of the proposed grounds of appeal at “a reasonably impressionistic level” and at that level to ascertain whether a ground is reasonably arguable: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J); MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478; at [38] (Tracey, Perry and Charlesworth JJ); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27] (Siopis, White and Perry JJ).

27    If one has regard only to the application for leave to appeal and the draft notice of appeal there is nothing to show that the application for leave to appeal is even remotely arguable. The sole proposed ground of appeal only raises the adequacy of the applicant’s explanation for failing to appear at the scheduled show cause hearing, and that was not the basis of the primary judge’s decision. The primary judge accepted the adequacy of the applicant’s explanation in regard to her failure to appear, and refused the reinstatement application because the applicant failed to show an arguable case for judicial review of the Tribunal’s decision. There is nothing in the proposed ground of appeal which challenges the primary judge’s conclusion that the application for judicial review did not disclose an arguable case.

28    It appears that the applicant misapprehends that her application for reinstatement was refused because she had not provided an adequate explanation for her failure to appear at the hearing before the FCC when that was not the case. In circumstances where the applicant is self-represented and English is not her first language it is, in my view, appropriate to look past her error in that regard and consider whether she can show an arguable case for the relief sought in her application for judicial review.

29    Taking that approach it remains the position that the application should be refused.

30    First, there is nothing to show that in refusing reinstatement the primary judge made a House v King error. That is, that his Honour erred in the exercise of discretion by acting upon a wrong principle, allowing extraneous or irrelevant matters to guide or affect him, mistaking the facts, not taking into account a material consideration, or because upon the facts the decision is unreasonable or plainly unjust. His Honour set out the applicable principles in relation to reinstatement and then applied them, doing so correctly in my respectful view.

31    Second, in relation to the merit of the underlying application for review, the application for judicial review before the FCC raised two grounds, namely that the applicant was not satisfied:

(a)    with the decision of the Tribunal and felt that she had been neglected by it; and/or

(b)    with the translation by the interpreter.

32    For the reasons I summarised above at [16] and [17] the primary judge did not consider that either of those grounds were reasonably arguable. I can discern no error in his Honour’s conclusions in that regard.

33    Third, though the grounds of judicial review did not require this, the primary judge took a painstaking approach and went on to consider whether the Tribunal’s findings of fact and its finding that the applicant’s circumstances did not satisfy s 5J(4)(b) of the Act were open to it. His Honour concluded that those findings were open, and that there was nothing to indicate irrationality or illogicality in the Tribunal’s decision or approach (at [39]-[40]). His Honour could discern no jurisdictional error in the Tribunal referring to its findings of fact in relation to the applicant’s refugee claims when assessing them under the complementary protection provisions (at [43]) and could see nothing in the decision to indicate an arguable basis for judicial review. Again, I can see no error in his Honour’s conclusions.

34    There would be no point allowing leave to appeal because the grounds of judicial review are not reasonably arguable. The application for leave to appeal must be dismissed with costs.

Associate:

Dated:    23 September 2020