BTR15 v Minister for Immigration

[2016] FCCA 1189

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTR15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1189

Catchwords:
MIGRATION – Administrative review – application to set aside order pursuant to r.16.05(2)(a) – application dismissed – applicant pay respondent’s costs.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c), 16.05(2)(a)

MZYEZ v the Minister for Immigration and Citizenship [2010] FCA 530

Applicant: BTR15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 789 of 2015

Judgment of: Judge Vasta

Hearing date: 9 May 2016

Date of Last Submission: 9 May 2016

Delivered at: Brisbane

Delivered on: 9 May 2016

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the First Respondent: Mr Richardson

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. All outstanding applications be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 789 of 2015

BTR15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. This is an application filed by BTR15 on 23 March 2016 where he seeks to reinstate his original application before this Court. 

2. That application was for a review of a decision of the Administrative Appeals Tribunal who had affirmed a decision of the Minister to not grant a protection visa to BTR15.  That matter was listed before me on 16 November 2015.

3. On the day of filing the application before me, the registry gave the applicant a time of 11.30am on 16 November 2015.  On 7 September 2015, a notice was sent to BTR15 that that time was now 9.30 am, and it had been 9.30 am from that date onwards. 

4. When the matter came before me on 16 November 2015, there was no appearance for the Applicant. I then proceeded under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 and, in default of appearance, dismissed the application.

5. BTR15 claims that he turned up at 11.30 am and it was then that he checked the list and saw that it was at 9.30 am. He says that he then went to the Registry.  The Registry made inquiries, he says, and told him that the matter had already been disposed of. 

6. In fact, I was still sitting in Court at that time and my Associates were in Court with me as it was a family law duty day, and so there was plenty of opportunity to have come up to Court and to talk to the Associates.  The orders would not have been taken out by then and the Registry could have contacted my Associates if the Applicant had arrived late.

7. I have strong doubts that the Applicant did show up at 11.30am because the things I would have expected to be done, were not done.  The Applicant did not take the name of who it was at the Registry who informed him that the matter was at an end.

8. So whilst BTR15 says that he did not look at his new notice and was still looking at his original notice, I do not accept that that is a proper excuse.  That is reinforced when it is apparent that the Minister sent correspondence to the Applicant that also spoke of the time as 9.30am.

9. What BTR15 then did was to appeal the decision that I had made to the Federal Court sitting in its appellate jurisdiction. That appeal went to Collier J who dismissed the appeal because it was incompetent, though she noted that a more prudent course would have been for BTR15 to have made application pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 and sought reinstatement of this matter.  He subsequently did seek such reinstatement.

10. As helpfully guided by the counsel for the respondent, Mr Richardson, I have been referred to the decision of Ryan J of the Federal Court in MZYEZ v the Minister for Immigration and Citizenship [2010] FCA 530. In that case, Ryan J enumerated the principles that govern the Court’s discretionary exercise of power under r.16.05(2)(a). His Honour said these were the three guiding principles at paragraph 7(a):

    “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….”

11. As to the first of those principles, I have already spoken as to whether there is a reasonable excuse and, as I say, in my view, the excuse is not particularly reasonable.  But as to the second, there really is no prejudice to the Respondent if I were to reinstate the matter. 

12. But the overriding matter is whether the Applicant has a reasonably arguable prospect of success on the substantive application, and that is the third principle that is spoken of by Ryan J.  Even if there were a reasonable excuse, my discretion would really revolve around an adjudication of that third principle.

13. In this matter, the Tribunal had looked at the case of the Applicant thoroughly.  In short compass, the Applicant was a student who came to Australia to study.  There have been a number of things which have caused the Applicant’s study not to have been completed and, because of that, the Applicant says that his father, who had been financing him, had given up on him and was disappointed, distressed and disgusted with the Applicant. 

14. The father, it is claimed, took out a loan to finance the Applicant’s studies here in Australia.  The Applicant says that he cannot repay the loan and that he, the Applicant, does not have any certificates to prove that he utilised his time in Australia.  He said that when he told his father about where he was and the fact that he was not able to stay in Australia because the delegate had decided not to grant him a protection visa, he said that his father lost his temper, his patience and he yelled and shouted at the Applicant, saying he was ashamed to have a son who brought so much humiliation to him and had disowned him.

15. The Applicant told the Tribunal that there had been moneylenders visiting his father demanding the money back with high interest and the father had lost respect and prestige due to the fact that he had not been able to pay back these moneylenders.  The Applicant told the Tribunal that the father’s respect and dignity was more important than his children and that the father does not want to see the Applicant again.  The Applicant said that he does not have the courage and would feel ashamed to lodge a complaint with the police against his own father and, therefore, authorities would be of no help.

16. The Applicant in an interview with the Department said that he did not believe his father would physically harm him upon return to India but he was scared that the moneylenders would hire people to pressure him to repay the money and he feared legal action to repay the money.  He confirmed in that interview that he could relocate to India but it would be hard for him to find work as he only completed year 12.

17. Upon those facts as relayed by the Applicant, it is quite obvious as to why the delegate did not grant the visa because it is obvious that there was no Convention reason given for the grant of a visa and the Applicant was not really facing significant harm upon return.  It would seem, on the evidence, he was not facing any harm on return.

18. The Tribunal summarised the issue as to whether the Applicant faced a real chance of serious harm or real risk of significant harm upon return to India from his father or from moneylenders.  In going through the facts, the Tribunal came to the view that they did not accept that the father would harm or disown him.

19. This is because the Applicant confirmed at the hearing that he was still in regular contact with his family, including his father, and that his father agreed to provide extra money for him to sit exams externally and is sending $300.00 a fortnight to him.  On that evidence, the Tribunal did not accept that the Applicant faced any chance of harm from his father or family upon return.

20. As far as moneylenders were concerned, the Tribunal considered those circumstances and did not accept that the Applicant faced a real chance of violence or harm upon return because of the moneylenders.

21. Therefore, when one looks at the Convention and the complementary protection criteria, neither of those would be made out and, for that reason, the Tribunal did not alter the decision made by the delegate.

22. When one has a look at the findings of fact that the Tribunal came to, such findings are open on the evidence before it.  It is not whether I would find differently on the evidence but whether the findings that the Tribunal made were, in fact, open.  It does seem to me that this certainly is the case.

23. As far as the application of the law is concerned, there does not seem to me to be any misapplication of the law at all.  The Applicant here before me could not point to anything and Mr Richardson, in his submissions, could not point to any such error.

24. Therefore, it would seem to me that, if the substantive application were before me, I would have no option but to dismiss the application because there is no discernible jurisdictional error. Really, there is no jurisdiction error at all.

25. So in looking at the matters which I have to in exercising my discretion under r.16.05(2)(a), none of those matters are made out at all, that in looking at the principles that guide my discretion it would seem to me that the overriding one, that is, of the prospects of success, really militate towards this application not being successful. Therefore, I dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:25 May 2016