AQQ15 v Minister for Immigration
[2016] FCCA 2933
•27 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQQ15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2933 |
| Catchwords: MIGRATION – Refugee Review Tribunal – application for reinstatement of application for review of Migration Review Tribunal decision – original application dismissed due to non-appearance at hearing by the applicant – reason for previous non-attendance – whether the applicant has an arguable case – reinstatement application dismissed with costs. |
| MZYEZ v Minister for Immigration and Citizenship (2010) FCA 530 |
| Applicant: | AQQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 942 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 27 September 2016 |
| Date of Last Submission: | 27 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 27 September 2016 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Mr Young |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The applicant’s application in a case filed 29 April 2016 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $1443.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
No. MLG 942 of 2015
| AQQ 15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION AND ANOTHER |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
DELIVERED EX-TEMPORE
Nature of Application
By way of an application in a case filed on 29 April 2016, the applicant is seeking to set aside an order summarily dismissing the proceedings in circumstances where the applicant had failed to appear.
The applicant filed an affidavit in support of his application in a case in order to provide an explanation for his failure to appear.
The originating application was filed on 1 May 2015, and the order made by Judge Hartnett summarily dismissing the proceedings was made on 15 April 2016.
On 1 May 2015, the applicant made an application to this court which set out the grounds of review as follows:
The RRT erred in not giving consideration to the evidence relating to the Applicant’s individual circumstances. Also the RRT erred in not giving consideration to the evidence provided that the Applicant will suffer significant harm by the Sri Lankan authorities upon his return to Sri Lanka. Accordingly the RRT erred as a matter of law.
On 18 August 2015, orders were made by consent for the filing of further material should the applicant wish to do so and for the filing of a court book. A notice of a directions hearing was sent out by the court to the respondent and the applicant that set a directions hearing for
15 April 2015. The applicant failed to appear on that day, and orders were made by the court dismissing the application on the grounds of non-attendance by the applicant.
The applicant filed an application in a case to necessitate the proceedings on 29 April 2016, and filed an affidavit in support sworn on the same day. Paragraph 5 of that affidavit states:
I am a person from a Non English Speaking Background and I am unable to read and write English. As a result of this, I was unable to understand the contents of the letter sent to me by the Court, informing me when I had to go to court.
Paragraph 6 provides:
I only had an opportunity to understand the contents of the aforementioned letter when I requested assistance from a welfare agency after I received the last Court Order made on
15 April 2016.
Plainly, the applicant indicates that he has received the letter from the court advising him of the hearing date, because he says that he did not understand the contents of that letter. Contrary submissions were made to the court today, with the applicant saying that he did not receive the first letter from the court, but only received a second letter advising him of a court order made on 15 April 2016. There is some conflict within the applicant’s own material, but I accept that the applicant was advised of the court date by a letter from the court, and I do not accept that an alleged inability to read English is a sufficient reason not to attend court on the date notified by the court. The applicant had sufficient time in order to get assistance to read the letter from the court.
In considering an application of this kind, I am guided by principles set out in the decision MZYEZ v Minister for Immigration and Citizenship (2010) FCA 530 at [7], where His Honour Ryan J stated
(with his emphasis):
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.
In relation to the first limb set out above, I do not accept that there is a reasonable excuse for the applicant’s absence from the hearing.
In relation to the second limb, no prejudice has been pointed to by the respondent, but that in and of itself is not a sufficient ground to set aside the order and reinstate the application. In relation to the third ground, I am not persuaded that there are reasonably arguable grounds advanced by the applicant for the reasons set out below.
Grounds of Review
The applicant set out in his visa application the grounds for his claim for protection.[1] Those grounds and are an accurate account of the proposed grounds and are summarised in the respondent’s submissions at [16] as follows:
[1] CB 70-73
16.Attached to his visa application was a statutory declaration dated 3 December 2012, which set out the Applicant’s claims for protection: CB 70-73. In summary, it stated:
16.1Life in Sri Lanka as a fisherman is very difficult and as such the Applicant did not make enough money to feed his family;
16.2That on the boat to Australia he worked as a cook, but feared that he would be arrested by the police and imprisoned for helping Tamils escaping Sri Lanka and labelled an LTTE sympathiser;
16.3That his family were evicted from the government allotted land due to his illegal departure;
16.4The Applicant’s cousin had been detained after attempting to skipper a boat to Australia and was caught;
16.5Four other people from the Applicant’s village had been detained for around four to five months for people smuggling; and
16.6The Applicant fears harm on the basis of his illegal departure from Sri Lanka and being a failed asylum seeker.
On 24 December 2013, the applicant applied to the Tribunal for a review of the delegate’s decision made on 18 December 2013, refusing to grant the applicant a visa.
The applicant, at the time of his application to the Tribunal, was represented by solicitors who appear to be specialists in this type of work. Detailed submissions were filed on behalf of the applicant which responded to the decision of the delegate and provided a basis for the applicant’s application to the Tribunal.[2]
[2] Court Book 138-165
Those submissions refer extensively to independent country information and advance the applicant’s claims to fear harm on account of his:
a)imputed opposition to the Sri Lankan government due to assisting Tamils to escape persecution;
b)membership of the particular social group of suspected people smugglers; and
c)his membership of a particular social group of failed asylum seekers return to Sri Lanka.
The Tribunal’s Decision
On 8 April 2015, the applicant attended the Tribunal hearing and was assisted by an interpreter who spoke Sinhalese, along with his migration agent. The Tribunal took account of each of the claims advanced by the applicant and dealt with each of those claims. The decision of the Tribunal is summarised at [23] to [32] of the submissions filed on behalf of the first respondent.
23On 13 April 2015, the Tribunal affirmed the delegate’s decision. While the Tribunal found that the Applicant was a cook on-board a boat that left Sri Lanka illegally, it did not find the Applicant to be a credible witness in relation to other aspects of his claims: [31].
24Based on its concerns in relation to the Applicant’s credibility, the Tribunal did not accept that the authorities had come looking for him after his departure, or that they took his brother away and beat him. While his family may have been evicted by the authorities, the Tribunal did not accept that this was due to his illegal departure and involvement in being a cook on board a boat: [32].
25The Tribunal accepted that the Applicant would face questioning upon his return over his illegal departure, however, found that it was remote that the authorities would seriously suspect him of being a people smuggler as his involvement was limited to acting as an unpaid cook: [34]-[35].
26The Tribunal also accepted that the Applicant’s cousin and other men from his village had been detained by the authorities due to people smuggling activities, but that no evidence was provided as to how this impacted on the Applicant’s circumstances. As such the Tribunal found that this would not cause the authorities to conclude that the Applicant was involved in people smuggling: [36].
27The Tribunal found that the Applicants circumstances, based on country information, meant that the Applicant would not face a real chance of persecution due to his membership of the following particular social groups: ‘people smugglers’; ‘suspected people smugglers’; or any actual or imputed political opinion – being pro-LTTE or anti-government: [37]-[38].
28The Tribunal accepted that, based on country information, those with an actual or imputed association with the LTTE may face a risk of harm, but found that the Applicant did not meet this profile, and would not be regarded by the authorities as having links with the LTTE, particularly as the Applicant was Sinhalese. While the Applicant may face questioning upon return, this did not amount to serious or significant harm. In conclusion, the Tribunal found that the Applicant would not face persecution on account of his membership of a particular social group – a failed asylum seeker returned to Sri Lanka: [43]-[46].
29The Tribunal, relying upon country information, found that those who leave Sri Lanka illegally may be questioned, but that this treatment applies to all who leave illegally and there is no suggestion of discriminatory enforcement of the relevant legislation: [47].
30The Tribunal found that upon return, the Applicant is likely to be detained for a short period and then released, and that while conditions in Sri Lanka prisons are poor, these apply to the whole population, and that this does not amount to systematic and discriminatory conduct, and, that this does not amount to serious harm under ss. 91R or 36(2A): [49]-[50].
31The Tribunal then considered the issue of the Applicant’s poverty. While accepting that the Applicant faced a level of poverty in Sri Lanka, it did not find that this amounted to serious or significant harm due to any intentional act or omission or was due to the result of discriminatory or systematic conduct under s 91R(1)(c): [53].
32In conclusion, the Tribunal did not accept that the Applicant faced a real chance of persecution in the reasonably foreseeable future in Sri Lanka for any reason, or that the Applicant would face a real risk of significant harm: [56], [57].
Consideration
Having reviewed the material before the Tribunal and the Tribunal’s decision for the purpose of determining whether the applicant has a reasonable chance of success, I am of the view that he does not. The matters raised are simply an attempt to argue with the merits of the Tribunal’s factual findings on the evidence. On my reading of the Tribunal’s decision, it gave consideration to each of the claims made by the applicant, together with the evidence that was given both orally and by way of documents and submissions and considered the relevant legal authorities.
The applicant’s grounds are a challenge to the findings of fact which the Tribunal made on reasonable grounds and set out the basis of the findings in detail. For these reasons, I am not persuaded that it is appropriate and in the interests of justice to accede to the applicant’s application to reinstate his application, and his application in a case filed on 28 April 2016 be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McNab.
Date: 17 November 2016
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