BVD15 v Minister for Immigration

[2016] FCCA 2064

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVD15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2064

Catchwords:
MIGRATION – Application for reinstatement of a show cause application which had been dismissed due to the non appearance of the applicant – inadequate explanation for that non-attendance and poor prospects of success of the show cause application.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA

Cases cited:

Selvadurai v Minister for Immigration (1994) 34 ALD 347

SZGIZ v Minister for Immigration [2013] FCAFC 71

Applicant: BVD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2463 of 2015

Judgment of: Judge Driver

Hearing date: 11 August 2016

Delivered at: Sydney

Delivered on: 11 August 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Burnett of Clayton Utz

INTERLOCUTORY ORDERS

1. The Application in a Case filed on 20 June 2016 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2463 of 2015

BVD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an Application in a Case filed on 20 June 2016.  The Application in a Case seeks orders setting aside a dismissal order made on 2 June 2016 on account of the non-appearance by the applicant.  In effect, the applicant seeks the reinstatement of his original judicial review application filed on 8 September 2015.  The Application in a Case is supported by an affidavit made by the applicant on 17 June 2016.  In that affidavit the applicant says that he failed to attend the scheduled hearing because he had moved address and did not get a letter from his lawyer or the Court about the hearing.  The applicant says he forgot to give his new address to the lawyer and to the Court.  He also says that because of financial problems, his lawyer ceased to act for him.  I received that affidavit as evidence.  The applicant was not required for cross-examination. 

2. I also have before me as evidence the court book filed on 19 November 2015. 

3. The proposition that the applicant failed to attend the schedule hearing because of a change of address does not survive scrutiny.  The orders I made on 2 June 2016 included several notations:

   4.The applicant’s solicitor was granted leave to withdraw on 30 May 2016.

   5. The applicant’s address for service, as notified in the Notice of Address for Service, filed 22 March 2016 is:

   …

   6. The applicant’s address for service as notified in the Application, filed 8 September 2015, and the solicitor’s Notice of Intention to Withdraw, filed 30 May 2016, is:

   …

4. Briefly, I noted that the applicant solicitor was granted leave to withdraw on 30 May 2016.  Secondly, I noted that the applicant had notified a change of address on 22 March 2016.  The address notified on that day is the address at which the applicant continues to live.  He confirmed that from the bar table this morning.  It follows that the applicant has lived at the same address since 22 March 2016.  It was the applicant’s solicitor’s responsibility to advise him of the scheduled hearing following a directions hearing on 29 April 2016 at which the applicant’s lawyer attended. 

5. The matter had been listed for a show cause hearing on that day but the applicant, through his lawyer, sought and was granted an adjournment until 2.15pm on 2 June 2016.  The applicant conceded from the bar table today that he had discussed with his lawyer the orders that I made on 29 April 2016.  He says that he nevertheless forgot the new hearing date and was evidently expecting some confirmation in writing.  In my view, simple forgetfulness is not an adequate explanation for the applicant’s non-attendance. 

6. I find that the applicant has failed to advance a sufficient explanation for that non-attendance. 

7. Even if the applicant had advanced a satisfactory explanation for his non-attendance on 2 June 2016, I would nevertheless not reinstate the application.  That is because, in my opinion, the applicant’s judicial review application fails to disclose an arguable case. 

8. The background to the applicant’s claims for protection is set out in the Minister’s outline of submission filed on 22 April 2016. 

9. The applicant is a citizen of Nepal, who arrived in Australia on 22 April 2009 on a fraudulently obtained passport.  The applicant first applied for a protection visa on 22 April 2010 (first application).  That application was refused on 5 August 2010, which decision was affirmed by the Tribunal (first Tribunal) on 18 November 2010.[1]

   [1] Court Book (CB) 1-52, 150 [10].

10. Relying upon SZGIZ v Minister for Immigration[2]  (SZGIZ), the applicant made a further protection visa application on 2 October 2013[3].  The delegate refused the application on 14 May 2014[4], and the Tribunal affirmed that decision on 5 August 2015[5]. The applicant commenced the current proceedings on 8 September 2015 (Application for Review).

    [2] [2013] FCAFC 71.

    [3] CB 68-101.

    [4] CB 111-124.

    [5] CB 148-157.

Protection claims

1. The applicant's claims may be summarised as follows:

   a)the applicant has been a member of the Rastriya Prajatantra Party (RPP) and the RPP (Nepal) (RPP-N).  He supports the monarchy;

   b)the applicant became an enemy of the Maoists due to this political affiliation, and was targeted and harmed by the Maoists in result;

   c)recent country information suggests that the Maoists want to recommence the People's War.  The applicant fears that he will be harmed in consequence due to his political opinion; and

   d)the applicant will also face difficulties on return because he is from a remote area and because he left Nepal on a false passport and he does not have an exit stamp on his current passport.[6] 

   [6] CB 150-152 [12]-[15].

Tribunal decision

1. The Tribunal considered the applicant's claims against the complementary protection criteria set out in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). After assessing the totality of the applicant's evidence and claims, the Tribunal concluded that the applicant was not a credible witness and that his claims were fabricated in their entirety.[7]   More specifically, the Tribunal identified the following inconsistencies in the applicant's evidence:

   a)in his political membership. The applicant's evidence before the first Tribunal and the present Tribunal varied as to what political parties he had been involved with, and when. The applicant variously claimed to have been involved with the RPP and the RPP-N, which are two different political parties. When this was put to him pursuant to s.424AA, the applicant claimed to have moved from the RPP to the RPP-N in April 2008. This was inconsistent with documentary evidence submitted by the applicant which indicated he was a member of the RPP subsequent to this time;[8]

   b)contact by the Maoists. The applicant gave evidence to the first Tribunal that the Maoists took him into the jungle in March 2009 and told him that he would be killed if he did not join them. To the present Tribunal, the applicant claimed they took him to an open area adjacent to his home. When this was put to him pursuant to s.424AA, the applicant claimed for the first time that both events occurred;[9]

   c)delay in seeking protection.  The applicant delayed a year after arriving in Australia before seeking protection.  The Tribunal found this to be inconsistent with the applicant's claimed fear of harm.[10]

   [7] CB 156-157 [44]-[54].

   [8] CB 154-155 [27]-[38].

   [9] CB 155-156 [39]-[41].

   [10] CB 156 [42].

2. Based upon the above, the Tribunal did not accept that the applicant's core substantive claims were truthful.  Specifically, the Tribunal did not accept that the applicant was or had ever been a member of the RPP or the RPP-N, or involved in royalist politics. The Tribunal was not satisfied that the applicant was at risk from the Maoists or for any other reason in Nepal.[11]

   [11] CB 156-157 [44]-[54].

3. The Tribunal also observed that country information indicated that there have been no reports of violence perpetrated by Maoists against members of royalist parties over the last three years in Nepal.  This indicated that there was no real risk of significant harm to RPP or RPP-N supporters in any event.[12]

   [12] CB 157 [52].

4. The Tribunal noted that there was no evidence to establish that the applicant was at risk of significant harm based upon his living in a remote area.  Nor was there any independent evidence before it that he would face harm for returning to Nepal on a passport without an exit stamp.[13]

   [13] CB 157 [49]-[51].

5. Accordingly, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed.[14]

   [14] CB 157 [54].

6. The applicant’s grounds of review are:

   1.I am not satisfied with the Tribunal's decision because I believe the Tribunal Member overlooked my claims that I am a victim of the Maoists due to my political opinion given the fact that the Maoists violence in Nepal when I was in Nepal.

   2.    The Tribunal Member ignored to believe my claim that I first became a member of the Rastriya Prajatantra Party and later I became a member of the Rastriya Prajatantra Party Nepal because I have been a monarchist since my childhood.

   3. I argue the Tribunal Member's finding that I was not threatened by the Maoists as a result of my political opinion is wrong.

   4.    I argue that the Tribunal Member failed to consider my claim that I would face punishment from the authorities of Nepal on return because I left Nepal on a false passport.

   5.    My delay in seeking protection visa here in Australia doesn't mean that I have no fear of serious harm on return to Nepal and it shouldn't be construed against my claims and it shouldn't be an issue given the fact I have explained the reasons for the delay truthfully.

   6.    I conclude that the Tribunal member's decision is affected by an error of law because it lacks natural justice and fairness.

7. Fundamentally, the grounds advanced by the applicant do not rise above a contest over the merits of the Tribunal decision.  The merits of the Tribunal’s decision are beyond the scope of this proceeding.  I agree with the Minister’s submissions in that regard. 

8. Contrary to Grounds 1, 2 and 4, the Tribunal considered the applicant's claim to fear harm on the basis of his political affiliations and use of a false passport.[15]  The Tribunal did not accept the applicant's political claims due to its adverse credibility findings.  It rejected the applicant's claim regarding the false passport because there was no independent evidence before it to suggest that the applicant faced a real risk of harm on this basis.

   [15] see [12]-[15] above.

9. Ground 3 does not rise above disagreement with the credibility findings of the Tribunal.  Those findings were open to the Tribunal on the evidence that was before it.  The Tribunal was not bound to accept uncritically all or any of the applicant's claims.

10. As to Ground 5, the Tribunal's finding that the applicant's delay in seeking protection was adverse to his credibility is well supported on the authorities.[16]  No error is demonstrated under this ground.

    [16] See for example Selvadurai v Minister for Immigration (1994) 34 ALD 347.

11. Accordingly, the applicant's grounds for the most part go no further than an entreaty towards impermissible merits review. The balance of the grounds argue that the Tribunal's decision “lacks natural justice and fairness”.  The applicant has not particularised this complaint.  It is unsustainable on the evidence before the Court.

12. In his oral submissions today, the applicant maintained his fear of returning to Nepal.  He notes that he left Nepal without his family and states that he would not have done so if he was unafraid.  Again, that goes to the merits of the Tribunal decision, not any issue of law.  I conclude that the judicial review application fails to disclose an arguable case for the relief sought. 

13. I will order that the Application in a Case filed on 20 June 2016 be dismissed.

14. In consequence of the dismissal of the application in a case, the Minister seeks costs fixed in the sum of $2,000.  The applicant sought to avoid a further cost order on the basis that the Minister had previously been awarded costs.  Previous orders, however, related to previous stages of these proceedings and the Application in a Case was an additional step.  The Minister has incurred costs in dealing with that application of at least $2,500.

15. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  16 August 2016