MZADO v Minister for Immigration

[2014] FCCA 2322

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZADO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2322

Catchwords:
MIGRATION – Application pursuant to r.16.05(2) of the Federal Circuit Court Rules 2001 to reinstate application dismissed for non-attendance – medical certificate inadequate – substantive application hopeless – lack of utility in reinstatement – application dismissed.

Legislation:  

Migration Act 1958
Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)
1951 Convention Relating to the Status of Refugees

Applicant: MZADO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 819 of 2014

Judgment of: Judge Burchardt

Hearing date: 1 September 2014

Date of Last Submission: 1 September 2014

Delivered at: Melbourne

Delivered on: 17 October 2014

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Rogers

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The applicant’s application to reinstate his application pursuant to r.16.05(2) of the Federal Circuit Court Rules 2001 is dismissed.

2. The Applicant is to pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 819 of 2014

MZADO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second  Respondent

REASONS FOR JUDGMENT

1. In this matter, the applicant seeks to reinstate his substantive application.  The application was originally filed on 2 May 2014 and seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal”) dated 31 March 2014.

2. The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.  The grounds as set out in the application are shortly put, namely:

   “1.    My marriage is genuine and am disputing it.”

3. The affidavit in support repeats that phrase, but adds nothing more, although a copy of the Tribunal’s decision is annexed. The first respondent’s response was filed on 22 May 2014 and the matter came on before Registrar Allaway on 6 August 2014, this being the time indicated upon the original application as when the matter would be heard. The applicant did not attend Court on that date and Registrar Allaway, on 6 August 2014, dismissed the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“the Court’s rules”).

4. The exercise of power is, of course in the circumstances, one reviewable as of right before a Judge, but the application in a case filed 7 August 2014 relevantly says:

   “1.    I seek to have the orders of 6.08.2014 over turned. 

   2.    I request to have a new hearing.”

5. The affidavit in support, likewise filed on 7 August 2014, relevantly asserts:

   “The reason that i didn’t come to my hearing because was i was sick and wasn’t able to come And I have attached the Medical Certificate”

6. The medical certificate relevantly asserts that:

   “(The applicant) is receiving medical treatment and is unfit for work/study for the period Wednesday, 6 August 2014 to Thursday, 7 August 2014 inclusive. 

   He will be unfit to continue his usual occupation or study. 

   This certificate was completed on 6/8/2014.”

7. The certificate does not reveal when on 6 August 2014 that certificate was obtained. 

8. The written submissions of the first respondent correctly observe that this is an application pursuant to r.16.05(2) of the Court’s rules and indicates (at paragraph 2) that the application is opposed on the basis that:

   “…the Applicant has not provided a satisfactory explanation for his non-attendance at the Federal Circuit Court directions hearing on 25 February 2014 and that the substantive application does not raise an arguable case.”

9. It is clear that the date in that paragraph is a typographical error.

10. The written submissions of the first respondent are in many ways all that the Court really has to assist it.  When the matter was before the Court the applicant said he was very sick and could not come and had tried to telephone the Court but had been unable to do so.  In response to a question from the Court he said he had body pain and a headache and subsequently indicated that the main problems were with his headache.  He went on to say he does not wish to return to India, and does not wish to have any contact with his family in India, that he has proper fear of return to India, that India is a country in which honour killings are common and that it is a very corrupt country.

11. The first respondent relied upon the written submissions filed and observed that the other matters raised by the applicant in his substantive application are simply merits review.  In reply, the applicant said that he was not understood properly at the first hearing and that was why he was asking again for a protection visa.

12. The written submissions of the first respondent observe that the applicant is a citizen of India and is of Hindu ethnicity. It is also noted that although having first identified himself as being of Sikh religion the applicant subsequently advised that he was not.  He has lived in Australia from around mid-2008 as a student and applied for his protection visa on 13 May 2013.  He did not attend an interview before a delegate and, scarcely surprisingly, the delegate on 18 September 2013 declined to grant the applicant a protection visa.

13. The applicant applied to the Tribunal for review of the delegate’s decision and was invited to attend a hearing before the Tribunal to give evidence and present arguments on 20 February 2014.  The hearing was adjourned to 5 March 2014 due to the applicant’s sudden illness, but on 31 March 2014 the Tribunal affirmed the delegate’s decision not to grant the applicant’s application. 

14. Doing the best I can based upon a copy of the Tribunal’s decision annexed to the applicant’s affidavit, and the written submissions of the first respondent, it seems reasonably clear that the applicant claimed to fear harm as a member of a Hindu family, who live in a very orthodox way, who is married to a Muslim.  His claims of fear sprang from, essentially, his family’s opposition to this inter-religious marriage.

15. The Tribunal paraphrases the application at paragraphs 1-3 of the Decision Record and noted the protection claims indicated in the visa application form.  The applicant provided a written declaration and a volume of country information about honour killings in the Punjab region and State treatment of inter-religious marriages, which the Tribunal paraphrased in a number of dot points at paragraph 9.  When the matter came on for hearing, however, the applicant urged the Tribunal to disregard his written claims to the Department on the basis that they were written by his agent without his knowledge and were incorrect (paragraph 15).

16. The Tribunal did not accept, in the main, the applicant’s denials for reasons set out at paragraph 15 which seem to me cogent on their face.  The Tribunal also did not accept that any difficulty in the English language would have disadvantaged the applicant, not least because he was able to discuss his claims in English for several hours at two Tribunal hearings and made a statement in English to the Tribunal which was written in the first person and provided directly to the Tribunal by him and not by his representative.

17. Essentially, the Tribunal did not accept at all that the applicant had met his wife or had any genuine relationship with her at the time of his protection application (paragraph 20).  Once again, the Tribunal’s reasoning seems cogent on its face.  The Tribunal made a number of findings which gave the applicant the benefit of the doubt, but the Tribunal’s credit findings effectively led the Tribunal not to accept that the applicant’s marriage was a genuine one.  The Tribunal found that the applicant’s decision to marry in February 2014 was conducted for the sole purpose of strengthening his protection claims and disregarded it accordingly.  The reasons for this, once again, strike me as cogently put. 

18. Given the absence of particularity in the applicant’s materials, it is sufficient to say for these purposes that the way that the Tribunal dealt with the matter before it and the decisions reached in respect of both the 1951 Convention Relating to the Status of Refugees (“Convention”) and complementary protection regimes seem to me at least to have been open to it.  It is clear from what the applicant said in the Court hearing that what he seeks, in substance, is merit review. 

19. Likewise, the applicant’s explanation for his non-attendance strikes me as being insufficient.  The medical certificate does not show the time of day at which it was given and is highly generalised in its nature as, indeed, was the applicant’s own explanation before the Court.  Neither what the applicant said nor what the medical certificate says explain why the applicant was prevented from attending Court on 6 August 2014.

20. Further, even giving the applicant the benefit of the doubt and accepting that he was, as he says, sufficiently ill on the day not to be able to attend, the grounds of review set out by the applicant simply seek to challenge a factual finding made by the Tribunal which, as I have already indicated, was clearly open to it on the materials as they stood.

21. There is no utility in granting the applicant the relief he seeks. His substantive application faces insuperable difficulties. In the circumstances, I will simply order that the applicant’s application pursuant to r.16.05(2) of this Court’s Rules be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  17 October 2014