M60 v Minister for Immigration (No.2) - [2003] FMCA 429

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M60 v MINISTER FOR IMMIGRATION (No.2)

[2003] FMCA 429

MIGRATION – Application to set aside judgment where no appearance –explanation for non-appearance shown – no reasonably arguable case for review shown.

Federal Magistrates Court Rules 2001

Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation 58 FCR 125
Rosing v Ben Shemesh (1960) VR 173
Watson v Anderson (1976) 13 SASR 329

Plaintiff S157 v Commonwealth of Australia 195 ALR 24

Applicant:

M60

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 1232 of 2002

Delivered on:

17 September 2003

Delivered at:

Melbourne

Hearing Date:

17 September 2003

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Mr J Gibson

Solicitors for the Applicant:

Wimal & Associates

Counsel for the Respondent:

Mr C G Fairfield

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the Application to set aside the decision on 12 August 2003 is dismissed.
That the Applicants pay the Respondent’s costs fixed at $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1232 of 2002

M60

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an Application to set aside an order I made on 12 August 2003 in which I dismissed an Application to set aside a decision of the Refugee Review Tribunal. On that occasion, the Applicants did not appear. It is accepted on the part of the respondent that subrule 16.052(a) of the Federal Magistrates Court Rules 2001 applies. That provides:
The court may vary or set aside its judgment or order after it has been entered if the order is made in the absence of a party.
The Applicants rely upon affidavits as sworn on 1 September 2003. On 12 August the solicitor attended as a matter of courtesy and advised the court that he had not been able to get in touch with the Applicants. He had sent a letter to the court's registry on 8 August 2003 in which he advised that he was no longer acting for the Applicants and had not received any instructions.
What the Applicants set out in their affidavit is that they had dealt with a migration agent; a Mr Gunatilake. They had only been to the office of the solicitor on one occasion on 7 May 2002 in order to sign some documents, and they paid some fees to the solicitor on that occasion. That is clearly a reference to an affidavit in support of an application to the High Court which was where the current proceedings originated. They were transferred to the Federal Court and then to this Court.
They say that all their dealings after that were with Mr Gunatilake and they were assured by him that they were being represented. They received a letter on 11 August from the respondent's solicitor, the Australia Government Solicitor, informing them that their lawyer had advised that he was no longer acting for them in relation to the Federal Magistrates Court matter. In the evening they say they met Mr Gunatilake and inquired about that letter and he told them that the matter was sorted out and that a barrister would be attending court. That obviously did not happen.
The principles to be applied in setting aside an order made in the absence of a party are well known. First, there needs to be put an explanation for the failure to appear and secondly it needs to be shown that there is an arguable case. It is put in different terms but “arguable case” is a convenient way of describing it. In terms of courts exercising federal jurisdiction the cases and the principles to be applied have been reviewed by R.D. Nicholson J in Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation 58 FCR 125. He referred to the well-known Victorian case of Rosing v Ben Shemesh (1960) VR 173 where the Full Court of the Supreme Court of Victoria said it was sufficient for the defendant to show a prima facie defence in an affidavit. In Watson v Anderson (1976) 13 SASR 329 the Full Court of the Supreme Court of South Australia said that the defendant must go beyond an assertion that there is a good defence and demonstrate a very compelling reason. There are more recent authorities which refer to the need for showing exceptional circumstances.
I am satisfied that the Applicants have given an explanation for their failure to appear. Their affidavit is not contested and it does appear that they have been misled by the migration agent. They intended to be represented. They had taken steps to be represented and they were not. So I am satisfied that they have given an explanation.
That leads to the second matter for consideration and that is whether they have an arguable case. Mr Gibson has appeared for the Applicants and he relies upon an amended application which sets out two new grounds. At the time of the hearing on 12 August, there were contentions and additional contentions which had been filed on behalf of the Applicants and settled by counsel. In my judgment on that day I dealt with those grounds. I thought it appropriate in the circumstances that I should deal with the merits of the application. That does not affect the application which is being made today but none of those grounds are now relied upon.
What is relied upon is a ground that the tribunal failed to deal with an essential element or an essential integer of the Applicants’ case. The Applicants’ case before the tribunal was this: they are both from Sri Lanka. The male Applicant’s father was a strong supporter of the United National Party, the UNP. His brother returned to help in his father's business in Batticaloa in 1987 and what the Applicant said was that his father was constantly harassed and threatened by members of the Liberation Tigers of Tamil Eelam (Tamil Tigers or the LTTE). He said that his father complained to police but they did not do anything and in 1994 the LTTE assaulted his father, abducted the Applicant’s brother and demanded a ransom. His father made payments from time to time. He told the Applicant that the LTTE had asked for his address in Colombo and advised him to leave the country. Then, in 1994 the Applicant says two men approached him, identified themselves as LTTE members and demanded money or they would harm his father and brother. He raised some money and then his son was born and he found a job in Qatar and moved there. He did not report the demands by the LTTE and said that nobody ever reported the abduction of his brother for fear of reprisals. I note that the tribunal in its reasons has recorded that the reason given by the Applicant for not reporting the abduction of his brother was fear of reprisals.
He then said that soon afterwards his father told him that his shop had been burned down by the LTTE and he only survived because the Applicant’s wife gave him money. In February 1995, the LTTE demanded money from the Applicant’s wife. She moved to a house in a suburb of Colombo. She visited Qatar later that year. In late 1996, they bought a house in another suburb in Colombo. In December of that year the LTTE visited the Applicant’s wife and demanded money, warning that they could find her wherever they moved. She continued to pay money. In November 1999, the LTTE threatened her at gunpoint, demanding she give money and allow Tamil members to live in her house.
The female Applicant said that LTTE members came to her house and said they wanted to let two terrorist Tigers live there because it was her duty as a Tamil, with a Tamil mother. She said she left her house the next day and stayed in various places until she left for Australia in April 2000.
The tribunal dealt with those claims in this way. It said this:
“The tribunal has grave doubts that the Applicant’s brother was abducted in 1994 and has not been seen since then while in the meantime the LTTE has continued to harass his father and extort money from the Applicant on the basis that it will not harm his brother. The claim that the Applicant’s have endured systematic harassment over a period of six years or so is a story that does not fit comfortably with the failure to report to the authorities the brother's abduction, the arson of the father's business and the subsequent threats and demands of the LTTE, the failure of the Applicant’s father to move to Colombo from Batticaloa to avoid the LTTE, especially after his business was destroyed in 1994, the willingness of the Applicant to leave his wife and child in Colombo at the mercy of the LTTE, the failure of the Applicant’s spouse to report that the LTTE demanded her house to accommodate men they identified as Tiger terrorists and the willingness of both the Applicant and his spouse to return to Colombo from Qatar, in the Applicant’s case, on 13 occasions over five or six years.
Further, their final escape would appear to lay the groundwork for the Applicant’s father's and brother's deaths, as they would no longer be meeting the LTTE demands, which they claim have been responsible for keeping the brother alive. The Applicant returned to Colombo on 13 occasions and his wife returned on two occasions. That in itself provides sufficient reason for the tribunal to conclude that they do not have genuine fears of persecution for the reasons they have described, although they may have other legitimate reasons for wishing to escape Sri Lanka.”

Later the tribunal says:
“It is inherently implausible that the abduction of the Applicant’s brother and the subsequent demands for money over six years would not be reported by the victim's family. It is also implausible that the Applicant’s father would not report the arson of his business or that he would not move to Colombo to avoid harassment by the LTTE after that incident.”
Then this:
“Available information including the material submitted by the Applicant regarding the assassination of a government minister demonstrate that the Sri Lankan government devotes a massive amount of time and energy to countering the LTTE.”
Then the tribunal goes on to set out the references. Then says:
“It is clear that the LTTE has no control in Colombo, notwithstanding sporadic terrorist attacks in that city, particularly on prominent people and institutions.”
The tribunal therefore made a finding of fact that the chronology which the Applicant relied upon did not occur. The tribunal did not believe the Applicants. The ground which is relied upon as a failure by the tribunal to consider a fundamental factor is put in two ways in the particulars but what it comes down to is this: that the tribunal failed to consider the Applicants’ claim that they did not report the abduction of the brother and the other incidents, including the demands and payment of money because of fear of reprisals. That, it is put, is the core of their claim and it is put that that is something that the tribunal has not considered and that that is an arguable case.
I do not consider that it does raise an arguable case. It is, I consider, a clear attempt to re-argue the questions of fact. Leaving aside any question of whether the Applicants’ claim that fear of reprisal was their reason for not reporting is an essential element or an integral element of their case such that failure to consider it would be a failure to exercise jurisdiction, it is plain that the tribunal was aware that that is what the Applicants were saying. As I have said, the reasons of the tribunal record is this:
“The male Applicant said he did not report the demands by the LTTE and said that nobody ever reported the abduction of his brother for fear of reprisals.”
The tribunal was plainly aware that that was what the Applicants were saying. Having shown that it was aware that that was what the Applicant was saying, the tribunal then went on to consider all the matters of fact which were being alleged and came to a conclusion, as a matter of fact, that they did not occur. It is correct that one of the basis for not believing what the Applicants said is that their claim for systematic harassment does not sit comfortably with the failure to report, but it is not the only reason. It is not a failure to deal with the claim that the demands of the LTTE and the abduction of the brother were not reported for fear of reprisals. It was considered. It was dealt with as one of the matters of fact which the tribunal had to deal with. Even if it was such an important matter that it was fundamental to jurisdiction it has been considered. It has been considered as a matter of fact. One thing is clear: in the cases which are continuing to emerge after the decision of the High Court in Plaintiff S157 v Commonwealth of Australia, that questions of fact are matters for the tribunals involved, the Refugee Review Tribunal and the Migration Review Tribunal, not something to be reviewed by a court.
I think it is quite plain that the tribunal has decided this issue on questions of fact. It has taken into account the claim by the Applicants that they did not report because of fear of abduction and that was a question of fact. Accordingly, whatever test is to be applied, whether it is exceptional circumstances or arguable case or clear and plausible case, I do not consider that the Applicants show that they have one. The application to set aside the judgment is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: