BXK18 v Minister for Home Affairs

[2018] FCCA 1760

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXK18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1760

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside orders made in the absence of the applicant – whether applicant has given adequate explanation for non-appearance – whether application would have merits if the orders were set aside – application dismissed.

Legislation:

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

Migration Act 1958 (Cth), ss.36(2)(aa), 473CB, 473CD(3), 473DB, 473DC

Cases cited:

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

Applicant: BXK18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1058 of 2018

Judgment of: Judge Manousaridis

Hearing date: 27 June 2018

Date of Last Submission: 27 June 2018

Delivered at: Sydney

Delivered on: 11 July 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Mr H Gao of Australian Government Solicitor

ORDERS

1. The application in a case filed by the applicant on 18 May 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1058 of 2018

BXK18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before me is an application in a case filed by the applicant on 18 May 2018 seeking an order under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the orders made by a Registrar of this Court on 14 May 2018 dismissing the application be set aside. The Registrar dismissed the application pursuant to r.13.03C(1)(c) of the FCC Rules because the applicant did not appear before the Registrar.

Principles

1. The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were considered by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]

   In circumstances where . . . 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.

   [1] [2010] FCA 530 at [7]

2. I therefore turn to the first matter I need to consider, and that is the reasons for the applicant not appearing at the hearing before the Registrar on 14 May 2018.

Reasons for non-appearance

1. Before I consider the applicant’s explanation for not appearing before the Registrar on 14 May 2018, it is necessary to explain the nature of the hearing before the Registrar on that day. The starting point is the applicant’s filing with this Court on 16 April 2018 an application for judicial review. That related to the decision of the second respondent (IAA) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).

2. When the application was filed, the matter was assigned a first court date to be held at 10:15 am on 7 May 2018. On that day the applicant did not appear. The Registrar adjourned the matter for directions to 14 May 2018, and ordered that the Minister notify the applicant of the Registrar’s orders. The Minister’s lawyers did so by sending a letter dated 7 May 2018 to the applicant to the address for service specified in the application.[2] The letter, however, did more than inform the applicant that the matter had been adjourned to 14 May 2018; it enclosed an information sheet written in Bengali. As I have already noted, the applicant did not appear at the directions hearing of 14 May 2018. There is no question that the power conferred by r.13.03C(1)(c) of the FCC Rules was available to be exercised by the Registrar when the applicant failed to appear at the directions hearing of 14 May 2018.

   [2] Exhibit A

3. In these circumstances, an explanation is called for the applicant’s non-appearance at the first court date of 7 May 2018 and the directions hearing of 14 May 2018. The applicant did not give any explanation in the affidavit which he filed with his application in a case. From the bar table, however, the applicant, who is not legally represented, but who appeared with the assistance of an interpreter, said that a friend filed the application with the Court but did not inform him that the matter had been listed before the Court for a first court date; and the applicant assumed the Court would notify him by letter of any need for him to attend. The applicant acknowledged receiving the letter from the Minister’s lawyer. He stated, however, that he shared an apartment with another person, the other person held the key to the post box associated with the unit, but the other person was away which meant the applicant did not become aware of the Minister’s lawyer’s letter until after 14 May 2018.

4. Mr Gao, who appeared for the Minister, was prepared to assume as true what the applicant stated from the bar table; but he submitted it did not constitute an adequate explanation. I too am prepared to assume what the applicant stated from the bar table to be true; and I agree with Mr Gao’s submission that the applicant’s statements provide no adequate explanation for the applicant’s not appearing at the first court date and at the adjourned directions hearing. The applicant, acting reasonably, ought to have undertaken basic enquiries of the manner in which the Court would deal with his application; and he ought to have been in a position to access in a timely manner communications he might receive in relation to his application. In the circumstances of this case, however, I propose to place no weight on these conclusions when determining whether I should set aside the Registrar’s orders. The determining question is whether the application for judicial review would have any reasonable prospects of success if I were to set aside the Registrar’s orders.

Reasonable prospects of success?

1. To be in a position to consider whether the applicant would have reasonable prospects of succeeding on the application for judicial review he filed it will be necessary to set out the claims for protection the applicant made, and the reasons the IAA gave for not accepting those claims.

Claims for protection

1. There is not before the Court a copy of the applicant’s application for a SHEV. The claims for protection which the applicant made, therefore, are to be inferred from the IAA’s reasons for decision, a copy of which is in evidence.

2. According to the IAA’s reasons for decision, the applicant’s claims for protection were based on his claims that he was a supporter of the BNP (that is, the Bangladesh Nationalist Party) and a member of both the BNP and the Jubo Dal, and that he was involved in raising electoral support for the BNP. The applicant claimed that, for these reasons, in June 2012 he was attacked by the Awami League as a result of which he was hospitalised. The applicant also claimed that his friend, Mr N, was beheaded in 2012 because of his involvement in the BNP movement, and that Mr N’s son was subsequently attacked and beaten by Awami League supporters; and that in 2014 the Awami League came to his father’s house and beat him when he could not tell them where the applicant was.

IAA’s reasons

1. The IAA did not accept the applicant was ever a supporter or a member of the BNP or the Jubo Dal, or that any members of the applicant’s family are supporters of the BNP, or that the applicant has any friends or associates who are supporters or members of the BNP or the Jubo Dal, or that the applicant or any of his family members, or any of his friends or associates have ever been attacked or have been of any interest to the Awami League.[3] The IAA relied on a number of matters.

   [3] DR, [15]

2. First, in his application for a SHEV the applicant claimed he joined the village branch of the BNP in 2008, and that the branch would hold meetings attended by 15 people to discuss how to seek votes for the BNP by convincing others to vote for their candidate in the 2008 election. The applicant supported that claim with a letter purportedly issued by the general secretary of a particular BNP subdistrict branch. That letter stated the applicant was a member of the “BNP family” and a dedicated worker of the Jubo Dal. The IAA, relying on country information, found that Jubo Dal is the youth front of the BNP and, although politically a part of the broader BNP movement, it is an administratively separate organisation from its parent party with its own constitution and administration, and with its own “membership policy/documents”.[4]

   [4] DR, [9]

3. Second, at the SHEV interview, the applicant, when asked about his BNP involvement, spoke only about the BNP; but when it was put to him that the letter of support on which he relied referred to the applicant being a dedicated worker of the Jubo Dal, the applicant said he was a member of both the BNP and the Jubo Dal. The IAA doubted this for the following reasons: (a) relying on country information the IAA found that members of the BNP’s front organisations, such as the Jubo Dal, are known to graduate to BNP membership from the youth or student organisations in which they were initially recruited; (b) in the SHEV interview the applicant spoke about his friend Mr N having been attacked because he was the local secretary of the Jubo Dal, yet in his written application the applicant referred to Mr N as being the president of their village branch of the BNP; and (c) before the Jubo Dal was mentioned to the applicant, he did not refer to his having any involvement with the Jubo Dal.[5]

   [5] DR, [9]

4. Third, the applicant claimed that his principal involvement with the BNP movement consisted of working to raise electoral support for the BNP’s candidate in the 2008 election, and that this involved holding meetings to plan how this would be done and then seeking votes.[6] During the SHEV interview, however, the applicant said he joined the BNP on 29 December 2008 and that he had no involvement with any BNP activities before this date. The IAA found, however, that given the Bangladesh elections were held on 29 December 2008, and the applicant said he joined the BNP on 29 December 2008, he could not have had any involvement in attending election campaigning before the election.[7]

   [6] DR, [10]

   [7] DR, [10]

5. Fourth, the letter purportedly from the BNP on which the applicant relied was dated 30 October 2008. That date is some nine years before the date the applicant stated in the SHEV interview he had requested the BNP issue the letter to him, and two months before the day on which the applicant stated in the SHEV interview that he joined the BNP.[8]

   [8] DR, [10]

6. Fifth, the applicant never provided the name of the BNP candidate for whom he claimed to have campaigned; and, when asked at the SHEV interview whether the applicant had ever voted, he said he had not.[9] The IAA did not accept the explanation the applicant gave during the SHEV interview for not having voted, which was that the applicant was not at home when government officials had come to his home to enrol people in the voter lists, and that he did not pursue the matter further because he said his own single vote made no difference, and it was more important that he encourage others to vote.[10]

   [9] DR, [11]

   [10] DR, [11]

7. Sixth, the IAA found the applicant’s evidence to be unconvincing in other regards. It found implausible the applicant’s claim that his friend, Mr N, was attacked and beheaded. The IAA found that episodes of significant political violence in Bangladesh, including those where BNP and Jubo Dal supporters have been the victims, continue to be widely reported and documented by the press and human rights commentators; yet the beheading was unreported, and the applicant provided no independent reporting to substantiate the claim.[11]

   [11] DR, [14]

8. Seventh, at the SHEV interview, when asked whether apart from himself any members of the applicant’s family were members of the BNP, the applicant said his father was a supporter of the BNP though not a member; but later in the interview the applicant submitted that not only his father but also his brothers and uncles were supporters of the BNP, and that all these people had been attacked and beaten by the Awami League on that basis.[12]

   [12] DR, [14]

9. Eighth, although the IAA accepted the applicant suffered a very serious injury to his leg for which he received some ten days’ worth of hospital care, the medical certificate on which the applicant relied to prove the injury gave no indications that the applicant suffered the injury as a consequence of an assault.

10. The IAA also considered whether the applicant had a well-founded fear of persecution on the ground that he would be a failed asylum seeker if he returned to Bangladesh, or that he left Bangladesh illegally; but it was not satisfied the applicant would face a real chance of harm of any kind on any such basis or any combination of these bases, if he were to return to Bangladesh.[13]

    [13] DR, [16]

11. On the basis of these findings, the IAA was not satisfied the applicant was a “refugee” within the meaning of s.5H(1) of the Act and, therefore, did not satisfy the criterion provided for by s.36(2)(a) of the Act.[14] On the basis of the findings it already made, the IAA was also not satisfied the applicant would face a real chance of experiencing harm of any kind if he were to return to Bangladesh. It found, therefore, that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm and, for that reason, further found the applicant did not satisfy the complementary protection criterion provided for by s.36(2)(aa) of the Act.[15]

    [14] DR, [18]

    [15] DR, [22]

Grounds of application

1. The grounds of application stated in the application the applicant filed are as follows (I have included the numbers in the square brackets to identify what I consider to be distinct grounds)(errors in original):

   [1] The applicant claims that he was denied procedural fairness and natural justice when IAA made decision on limited information – material referred by Secretary Under s473CB of the Migration Act

   Particulars: The IAA failed to inform or invite the applicant withregards to any claim or any misunderstanding of the claims forwarded in the Primary application for the protection visa. The applicant claims he did not get a chance to expand his claims. The applicant believes that not asking for any new information of harassment or torture by the Awami League party in Bangladesh is itself is a jurisdictional error.

   [2] The IAA made a jurisdictional error when it failed to take account relevant and recent country (Bangladesh) information about the torture and harassment of BNP workers and supporters in Bangladesh by the Awami League Party ruld Government.

   Particulars:

   [3] The IAA adopted hard attitude in assessing or examining the relevant facts presented by the applicant. The Tribunal failed to assess the relevant material presented on logically probative and relevant materials.

   The IAA failed to understand the current political situation on which he made a statement about his political involvement with BNP. He was involved in politics from very early stage. He was one of the main organiser of youth group of NP supporters. He was one of the main leader of Jubo Dal. He has been involved in raising electoral support for BNP

   [4] The applicant clarified reason of inconsistency on his claim for his injuries occurred and he was hospitalised for medical treatment. To discredit the oral evidence with regards to is injuries the Tribunal intentinally asked many irrelevant questions and come to conclusion that it is diproportionat. The applicant claims that asking questions for discredit the evidence is not legally reasonable. The IAA made a jurisdictional error when he was denied natural right to speak freely without any created method to discredit the evidence.

   [5] The applicant is a truthful witness when he declared all the reasons of his fear from the Awami League.

   [6] The applicant claims he was denied natural justice when the Respondent completed a formalistic right to hearing but the procedure or conduct and substance (or mental processes) were not followed or implemented. It is believed that in the absence proper procedures, a decision maker’s perceptions of the merits of a case may precent the substance from ever being properly ascertained.

   [7] Applicant claims that the IAA undermined substantial grounds for believing that as a necessary and foreseeable consequences of applicant being removed to Bangladesh, there is a real risk that he would suffer significant harm, as defined in s 36(2A) of the Act for the purpose of a 36(2)(aa)

   .Particulars . The IAA raised unnecessary doubt over the genuineness of asserted fear claimed by the applicant. The Tribunal discarded all of the relevant documents forwarded by the applicant in support of the claim. The Applicant claims that IAA’s finding of reasons are confused and test for persecution is not applied according to the rules of the Act and according to Complementary Protection Provisions under s.36(2)(aa) of the Act.

   [8] There is a real risk the applicant would be subject to cruel or inhuman treatment: be subjected to degrading treatment and/or be arbitrarily deprived of his life. The applicant fears of Persecution is based on his support to BNP and his active involvement in the party’s political activities The applicant claims that the Government subjected the judiciary to political pressure and cases involving opposition leaders often proceeded in an irregular manner.

   It is apparent that the corruption remained a serious problem within judiciary and was a factor in lengthy delays in trial s, which facilitated wit ness tempering and intimidation of victims.

   Several reports by human rights groups and corruption watchdog groups indicated growing public dissatisfaction with perceived politicisation of the judiciary.

   [9] The IAA failed to give real reasons for not applying Complementary Protection Cretaria Under Paragraph 36 (2) (aa).

2. At the hearing before me, the applicant said he was unaware of what was contained in the application for judicial review. I adjourned the hearing to enable the grounds to be interpreted to him. When I resumed the hearing, I asked the applicant whether he wanted to make any submissions in relation to the grounds. The applicant said that his life will not be safe if he returns to Bangladesh. That submission does not address the grounds, but is an appeal to merits review.

3. The application may be taken to contain 9 grounds. The first ground is that the applicant was denied procedural fairness because the IAA made its decision on limited information, namely, the information the Secretary provided the IAA under s.473CB of the Act, without inviting the applicant to “expand his claims”; and without asking for new information of harassment or torture by the Awami League in Bangladesh.

4. Ground 1 raises no arguable case of jurisdictional error. Under s.473DB of the Act the IAA was required to review the delegate’s decision by considering the material provided to it under s.473CB of the Act without accepting or requesting new information, and without interviewing an applicant for review. This obligation is subject to s.473DC of the Act. It is true that s.473DC(1) permitted the IAA to obtain “new information”, being information that was not before the Minister (or his delegate) when the Minister made the decision rejecting the applicant’s claim for a SHEV and which the IAA considered may be relevant; and the IAA had the power under s.473DC(3) of the Act to invite the applicant to give “new information” in writing or at an interview. And it is also true that “particular circumstances may arise in the course of a review that may, as a matter of legal reasonableness, require the Authority to consider exercising its discretion under s 473DC”.[16] But s.473DC of the Act did not impose on the IAA an unqualified duty to invite the applicant to explain and expand his claims; and ground 1 does not identify any facts or matters that could reasonably suggest the IAA arguably came under an obligation to consider whether it should exercise the power under s.473DC(3) of the Act to request the applicant to provide “new information”.

   [16] Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32, at [80]

1. Ground 1 assumes there was “new information of harassment or torture by the Awami League party”, but it does not identify that information. It is difficult, in those circumstances, to discern any arguable case that the IAA made a jurisdictional error by not asking the applicant whether there was any “new information of harassment or torture by the Awami League party”. Further, it is not arguable that any “new information of harassment or torture by the Awami League party” could reasonably have been considered by the IAA to be relevant to the IAA’s review. The IAA affirmed the delegate’s decision principally on the ground that the applicant’s claims that he was a member of or associated with the BNP were not credible. Whether or not the Awami League members harass or torture BNP supporters or members could not reasonably have been considered to be relevant to the question the IAA decided adversely to the applicant, and which proved to be dispositive of the application for review before the IAA.

2. Ground 2 is that the IAA failed to take into account relevant and recent country information about the torture and harassment of BNP workers and supporters in Bangladesh by the Awami League Party. This raises no arguable case of jurisdictional error. First, it does not identify the information the IAA failed to take into account or which in exercise of the power conferred by s.473DC(3) of the Act the IAA ought reasonably to have considered obtaining from the applicant. Second, it is not reasonably arguable that information about the harassment and torture of BNP members by the Awami League was or could reasonably have been considered relevant to the decision the IAA made, given the IAA did not find credible the applicant’s claims that he was a member of or associated with the BNP.

3. Ground 3 claims the IAA failed to assess the relevant material before it, and that the IAA failed to assess the relevant material presented on logically probative and relevant materials. I take that to be a claim that it was not reasonably open to the IAA to conclude that the applicant’s claims that he was a member or otherwise associated with the BNP were not credible, and the IAA acted irrationally by so concluding. It could be that ground 3 also claims the Tribunal approached the applicant’s case with a closed mind. Such claims are not reasonably arguable. My summary of the IAA’s reasons identifies the grounds on which the IAA concluded the applicant’s claims were not credible. It is beyond argument that it was reasonably open to the IAA to so conclude and for the reasons on which it relied.

4. Ground 4 is predicated on the applicant’s having been asked questions by the “Tribunal” or by the IAA. The complaint is that the applicant “clarified” the inconsistency there identified, and the “Tribunal” asked irrelevant questions, and the IAA denied the applicant “natural right to speak freely without any created method to discredit the evidence”. This ground is unarguable because it is predicated on an event or events involving the questioning of the applicant which did not occur. To the extent the ground is directed to what occurred before the delegate, the ground does not raise any arguable jurisdictional error because there is nothing in the ground that could reasonably suggest what occurred before the delegate gave rise to jurisdictional error in the manner in which the IAA reviewed the delegate’s decision.

5. Ground 5 claims the applicant is truthful witness when he declared his reasons for fearing the Awami League. That discloses no arguable jurisdictional error because it is an appeal to the merits of the applicant’s claims for protection.

6. Ground 6 claims the applicant was denied natural justice because the “Respondent completed a formalistic right to a hearing” without the IAA following proper procedures. This ground is not arguable because it is predicated on the applicant’s having appeared before the IAA. That is incorrect. The ground may also be taken to claim that the IAA failed to actively consider the applicant’s claims. Such a claim, however, is not arguable. As I have already noted, my summary of the IAA’s reasons identifies the grounds on which the IAA concluded the applicant’s claims were not credible. It is beyond argument that the IAA actively considered the applicant’s claims and concluded those claims were not credible for reasons that were reasonably open to it.

7. Ground 7 may be taken to make five claims. One is that the IAA “raised unnecessary doubt over the genuineness of asserted fear”. That may be taken to be a claim that the IAA approached the question whether the applicant held a genuine fear with a closed mind. It may also be taken to make a claim that it was not reasonably open to the IAA not to accept the applicant held a genuine fear. To the extent the applicant intends to make such claims, they are not arguable. As I have already noted, my summary of the IAA’s reasons identifies the grounds on which the IAA concluded the applicant’s claims were not credible, and that the IAA actively considered the applicant’s claims concluding those claims were not credible for reasons that were reasonably open to it.

8. A second claim ground 7 may be taken to make is that the IAA failed to consider documents the applicant submitted in support of his claims for protection. That claim, too, is not arguable because the ground does not identify documents it could be said the IAA did not consider.

9. The other three claims the ground may be taken to make are that the IAA did not properly consider the applicant’s claims, the IAA’s reasons are unintelligible, and that the IAA applied the incorrect test under s.36(2)(aa) of the Act. None of these three grounds are arguable. As I have already noted, my summary of the IAA’s reasons identifies the grounds on which the IAA concluded the applicant’s claims were not credible. The IAA reasons are intelligible, they manifest an active engagement with the applicant’s claims resulting in the IAA making findings that were reasonably open to it for the reasons it gave, and manifested no misunderstanding of the nature and scope of the complementary protection criterion provided for by s.36(2)(aa) of the Act.

10. Ground 8 claims the applicant will be subjected to cruel and inhuman treatment on account of his support of the BNP, and refers to the problems with the judiciary in Bangladesh. That discloses no arguable case of jurisdictional error because it is an impermissible appeal to the merits of the applicant’s claims for protection which were not accepted by the IAA.

11. Ground 9 claims the IAA failed to give reasons for not applying the complementary protection criterion provided for by s.36(2)(aa) of the Act. That is not arguable. The IAA identified the complementary protection criterion, set out the meaning of “significant harm” as defined in s.36(2A) of the Act, and then concludes that, “for the reasons given above” (which without a doubt was intended by the IAA to be a reference to its findings and the reasons for the findings it made in relation to the applicant’s claims that he was a member of or associated with the BNP), the applicant did not satisfy the complementary protection criterion provided for by s.36(2)(aa) of the Act.

Other matters

1. At the hearing before me I asked the applicant whether he had any complaint about how the IAA assessed his claims for protection. The applicant said that he saved his life on two occasions in Bangladesh, and the third time by coming to Australia. The applicant also said he did not obtain documents because he came to Australia to save his life. Later, after Mr Gao had completed his submissions, the applicant said that if he goes back to Bangladesh he will suffer harm. He also referred to his father having been attacked. None of these matters raise any arguable case of jurisdictional error by the IAA.

2. For completeness, I should note that the applicant tendered documents which he said revealed the current political situation in Bangladesh. The applicant informed me that he had not submitted those documents in support of his application for a SHEV. Although I marked the documents for identification, I did not admit them into evidence because they were not relevant to whether the IAA made or arguably made any jurisdictional error.

Conclusion and disposition

1. I have concluded that none of the grounds stated in the application, and nothing the applicant said to me at the hearing, disclose any arguable or reasonably arguable case of jurisdictional error by the IAA. That means that if I were to set aside the Registrar’s orders of 14 May 2018 the applicant would have no reasonable prospects of succeeding on his application for judicial review of the IAA’s decision. For that reason I am not satisfied that it is appropriate that I should make an order under r.16.05(2)(a) of the FCC Rules to set aside the orders made on 14 May 2018.

2. It follows, therefore, that the application in a case the applicant filed on 18 May 2018 should be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 11 July 2018