BZADA v Minister for Immigration
[2013] FCCA 791
•13 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZADA v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 791 |
| Catchwords: MIGRATION – Application to set aside earlier order dismissing application for want of appearance. |
| Legislation: Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a) |
| Applicant: | BZADA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 876 of 2012 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 13 May 2013 |
| Date of Last Submission: | 13 May 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 13 May 2013 |
REPRESENTATION
| The applicant appeared in person |
| Solicitor for the Respondents: | Mr Burgess |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application in a case filed on 26 April 2013 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 876 of 2012
| BZADA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex tempore
On 26 April, 2013 the applicant in these proceedings filed an application wherein he seeks, pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001, an order to set aside the orders that I made on 28 March, 2013. He seeks a further order that no action be taken to remove him from Australia while the decision is pending, and he seeks whatever order as to costs the Court thinks is appropriate.
In support of his application, there is an affidavit which consists of two paragraphs. They are as follows:
1. I am not represented by solicitor. Therefore, I am not fully aware of the legal consequence of the court hearings. Please consider my application in the light of the above circumstances.
2. I could not attend the hearing on the designated date because I made an honest mistake. I thought my hearing on 28 April 2013.
As the solicitor for the respondent points out in oral submissions, the applicant has also suggested that he was, in fact, present at court on 28 March, 2013 but was late.
These proceedings were commenced by an application seeking judicial review of a decision of a refugee review tribunal. The proceedings were commenced on 4 October, 2012 and were given a first court date of 8 November, 2012.
On that date the application came before me and I directed that:
a)the applicant file and serve any amended application that he wished to by 6 December;
b)he file and serve any evidence upon which he intended to rely by 6 December;
c)the first respondent file and serve any affidavit evidence that he might wish to rely upon by 20 December; and
d)each party file and serve written submissions and lists of authorities according to a timetable which took the matter up to a hearing date of 10:00am on 28 March 2012.
Both parties were given liberty to apply on three days notice. At the time I made the directions orders, the first respondent, I think, had filed on 24 October, 2012 a bundle of relevant documents.
When the matter came before me on 28 March, 2013 there was no appearance for the applicant. No written submissions had been filed on his behalf. No amended application had been filed, and no affidavit evidence, to the extent any was necessary, had been filed either. Because he did not appear, the application was dismissed in his absence pursuant to rule 13.03C(1)(c) of the (then) Federal Magistrates Court’s Rules 2001.
On this application, there are a number of relevant factors to be taken into account. The first is whether there is any explanation for the applicant’s failure to appear on 28 March. The second is an explanation for any delay in bringing this application to set aside those orders, and thirdly whether there is any purpose to be served in setting aside the orders, having regard to the merits of the principal application that the applicant wishes to agitate before the Court. Of those three factors, perhaps the most important is the last.
There are conflicting explanations as to why the applicant did not appear on 28 March, 2013. On one version, he did not know the date of the hearing was 28 March but thought it was 28 April. On another version, he in fact came to court but was late.
There is a delay of about a month between the making of the orders of 28 March and the filing of this application. Having regard to the applicant’s circumstances, that is hardly a delay which would disentitle him from relief if relief otherwise ought to be granted.
I turn then to the question of the merits of his primary application. The primary application challenges the decision of a refugee review tribunal that was handed down on or about 30 September, 2012. There is a dispute in the material – when I say “the material,” I mean the application and the documents in the court book – as to when the decision was handed down. It could have been handed down as early as 29 August, 2012. But in any event, this application for judicial review before me was filed on 4 October, some 36 days after the Tribunal’s decision was dated 29 August, 2012. Section 477(1) of the Migration Act 1958 provides that the application is incompetent unless it is lodged within 35 days of it being made. This application was out of time, and the Court is required to grant an extension of time in respect of the principal application if it is to proceed.
Leaving aside the question of an extension of time, the background to the claim seems to be this. The applicant, a citizen of India, arrived in Australia on 5 July, 2009 on a student (temporary) visa and returned to India on 5 January, 2010. He returned to Australia on 7 February, 2010 but did not lodge an application for a protection visa until 16 December, 2011. There was a two-page statement which accompanied his visa application. In that application, he claimed that he had been affiliated with the All India Sikh Student Federation and that government authorities had followed his movements and warned his father about the situation in India. The applicant’s father told him to leave the country immediately to avoid being detained by the authorities.
The applicant also claimed that he and his father borrowed money on high interest from a money lender in India to finance the applicant’s study in Australia and when the lender approached the applicant’s father for the money to be repaid, his father told the lender that he was no longer responsible for the applicant, and he should seek the money from the applicant. His father also gave the lender the applicant’s telephone number in Australia, and the lender called the applicant and threatened to kidnap his sister if he failed to repay the money. The lender also sent “goons” to threaten and humiliate the applicant’s mother.
The applicant claims that the police refused to help him as he was a member of the Sikh Student Federation. The applicant asked for help from that federation and its members, and he says although they stopped the lender, the lender told the police that the applicant was actively involved and financed by the federation. The lender apparently threatened to kill the applicant if he returned to India.
The matter went before a delegate of the Minister to consider the application for the protection visa and it is apparent from the record – in particular the documents set out in the court book – that there were difficulties encountered by the delegate in making contact with the applicant. The material reveals that there was a letter dated 11 April, 2012 by which the applicant was invited to attend an interview with a delegate of the Minister. The applicant attended the interview by telephone, but the interview could not be completed because the telephone call was disconnected and the applicant did not call back or otherwise contact the delegate after being left a voice message to do so.
The delegate made the decision on 11 May, 2012 to refuse the applicant the protection visa for which he had applied. The applicant lodged an application for review of the delegate’s decision on 8 June, 2012. On 19 July, 2012 the Tribunal wrote to the applicant, inviting him to attend a hearing on 29 August, 2012. It is obliged to do that if it cannot conclude the application in the applicant’s favour. The Tribunal concluded that it could not determine the application for the protection visa in the applicant’s favour and invited him to attend an interview.
The invitation, according at least to the material in the court book, complied with the legislative requirements in that it was addressed to the applicant’s address for service – an address in Emerald which I note is still the address that he uses for the purposes of these proceedings. The hearing invitation letter asked the applicant to attend and give evidence before the Tribunal. It gave him notice of the time, day and place where the hearing was to be conducted, and it was given to him by a means which was legislatively mandated. Section 441A of the Migration Act sets out the regime by which notices such as this are to be given to applicants, and that, in connection with the relevant regulations set out in the Migration Regulations 1994, make up a scheme whereby documents such as this one can be given to applicants for the purposes of proceedings under the Act.
The applicant failed to appear at the hearing that the Tribunal set up for the purpose of taking further submissions and evidence from him. The Tribunal received no response at all to the hearing invitation and accordingly the Tribunal went on to decide the application, as it was entitled to do, without the benefit of hearing from the applicant. The Tribunal found that after considering all of the evidence that was before it, it was unable to be satisfied that the applicant faced a real chance of serious harm in the reasonably foreseeable future in India for a Convention reason. Accordingly, because it could not be satisfied that the applicant’s fear of persecution was well-founded, the application was dismissed.
In the principal application before me, the applicant identifies three grounds of relief. The first is:
The second respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal. On account of the mistake of the third party, the Tribunal inadvertently failed to discharge its statutory duty. By consequences, Tribunal decision is not a decision at all in law.
The difficulty with that argument for the applicant is that the statutory regime established by the Migration Act and the Migration Regulations does not require that he receive the hearing invitation. What is necessary is that it is dispatched to him in a particular way, and providing it is dispatched to him in accordance with the Act and the Regulations, he will be deemed to have received it, whether he has in fact received it. Thus, non-receipt of the invitation is, unfortunately for him, neither here nor there. The Tribunal was specifically empowered by s.426A(1) of the Migration Act to proceed to determine the review without taking any further action to enable the applicant to appear before it and give evidence. There is very little, if any, merit in this ground of review.
The second ground raised by him is this:
My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend in the hearing. It became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me, written, to make my comments, in order for fully compliance of section 424A.
As I have already indicated, the Tribunal was not required to chase up the invitation letter and to ensure that either the applicant received it or that he responded to it. That seems to deal with the first part of the complaint raised in the second ground to his application. The second part of that complaint relates to s.424A of the Migration Act, and that is a requirement for the Tribunal to place before him for his comment any information that might be the reason, or part of the reason, for which the Tribunal would affirm the decision under consideration.
I accept that that argument, in the circumstances of this case and having regard to the court book, is problematical for the applicant. The Tribunal’s reasons for decision make it plain that its decision was based on the information provided to it by the applicant, and that information is not information that the Tribunal is required to give to him by reason of s.424A of the Act. That section, having regard to the Tribunal’s decision, was not in this case engaged.
The third ground relied upon by the applicant is this:
Unfairness was involved in the failure of the Tribunal to send further communication to substantiate my claim of refugee status, and therefore there was a denial of natural justice.
I repeat what I have earlier said about the obligation on the Tribunal to send the invitation to the applicant in a particular way, and the consequences of the Tribunal doing that. There was no obligation on the Tribunal to do anything other than what it did.
The fourth ground is set out thus:
The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
This ground is a catch-all, it seems to me, and one which is of very general purport. The Tribunal did not arrive at any level of “reasonable satisfaction” about the applicant’s claims, because if it did so it may have taken a different course to the one which it did. It was because the Tribunal could not reach the appropriate level of satisfaction about the applicant’s claims that the decision under review was affirmed.
Having regard to the grounds of review relied upon by the applicant, the decision of the Tribunal revealed in its decision record and the documents set out in the court book, and with the assistance of the submissions filed by the respondents for the purposes of the final hearing, I am satisfied that there is very little merit to the application for review filed by the applicant in October last year. The application becomes even more unmeritorious when one considers that an extension of time is required for it to be successfully prosecuted, and an extension of time is not likely to be granted, largely because (a) there is no explanation for why it was filed out of time, and (b) the application itself, for the reasons I have already given, is without merit.
In those circumstances, the application to set aside my orders of 28 March, 2013 will be refused.
RECORDED: NOT TRANSCRIBED
There will be an order that the applicant pay the first respondent’s costs of and incidental to this application, fixed in the sum of $500.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 13 May, 2013.
Associate:
Date: 11 July 2013
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