MZAFY v Minister for Immigration

[2015] FCCA 2082

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAFY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2082

Catchwords:
MIGRATION – Application for reinstatement of application for judicial review – adequate explanation for non-attendance at initial hearing – no merit to application – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Applicant: MZAFY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1164 of 2014

Judgment of: Judge McGuire

Hearing date: 28 July 2015

Date of Last Submission: 28 July 2015

Delivered at: Melbourne

Delivered on: 28 July 2015

REPRESENTATION

Solicitors for the Applicant: In Person

Counsel for the Respondents: Mr Priest

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Leave is granted to amend the Second Respondent’s name to the Administrative Appeals Tribunal.

2. The Application in a Case for reinstatement filed on 29 April 2014 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1164 of 2014

MZAFY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

1. The applicant makes an application for reinstatement of his substantive application. The application was listed for judicial review in this Court on 27 March 2015. There being no appearance by or on behalf of the applicant on that day at 10.00am the application was dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth).

2. The applicant filed an application in a case on 29 April 2015 supported by an affidavit in support affirmed 29 April 2015 seeking orders for the reinstatement of proceedings.

3. The applicant appears unrepresented before me today but with the assistance of an interpreter. Prior to the commencement of the hearing the interpreter established there was a proper understanding between herself and the applicant.

4. The first respondent is represented by Counsel and opposes the application.

5. The Court has the power under rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) to vary or set aside the Court’s judgment once it has been entered into and made in the absence of one of the parties.

6. The Court’s jurisdiction for an application for reinstatement is discretionary requiring attention to two broad considerations. Firstly, whether there is an adequacy of reasons for the non-attendance at the substantive hearing that lead to the dismissal of the application and secondly, consideration of the merits of the substantive application.

7. The applicant says that the reason for his non-attendance at Court on 27 March 2015 was because he says that he got a flat tyre and had no knowledge as to the mechanics of changing a tyre. He says that he obtained some assistance. He says the arrived at Court approximately an hour or so after the matter had been dealt with.

8. On consideration of the affidavit and of some oral submissions today, which effectively repeated the materials in the affidavit, I understand that Counsel for the first Respondent does not dispute the applicant’s reasons for the non-attendance on the last occasion. In my view, the reasons amount to an adequate explanation for the non-attendance although the applicant may have been assisted if he attempted to contact the Court or office of the first respondent’s solicitors. Consequently, in respect of his explanation for non-attendance, I accept the applicant’s evidence and find that explanation to be adequate and reasonable.

9. In respect of the consideration as to the merits of the substantive application, Counsel for the first respondent argues that he that there is no merit.

10. That application was filed 13 June 2014 with a supporting affidavit sworn 12 June 2014. The application raises two matters of complaint on its face being that the Refugee Review Tribunal’s (“the Tribunal”) decision is “affected by an error of law” and “denied the applicant procedural fairness.” Significantly, the applicant provided no written submissions pursuant to the orders and directions of the Registrar and the matters of complaint are in no other way particularised save and except for some oral submissions that I received today.

Background.

1. I borrow the background of this matter from the written submissions of the first respondent.

2. That applicant seeks a Protection (Class XA) visa (“the visa”).

3. The applicant is from Pakistan. He arrived in Australia on a short-stay business visa on 19 December 2011. The applicant applied for a Protection (Class XA) Visa on 13 August 2012. On 5 April 2013 the Delegate refused to grant the visa. The applicant applied to the Refugee Review Tribunal on 24 July 2013 to review the decision of the Delegate.  On 12 May 2014 the Tribunal affirmed the Delegate’s decision not to grant the applicant a visa.

4. The applicant claims fear of harm on the following bases:

   ·The applicant says that he is from a moderate Muslim family that rejects conservativism and extremism.

   ·He claimed that his best friend was a Christian and they attended Christian church services together.

   ·He says in August 2009 he accompanied a Christian aid convoy to a town in Pakistan which was set alight and many Christians were killed.

   ·He says that in 2010 there was a further incident involving the same extremist responsible for an attack on the town of Gojra and that he was branded a ‘blasphemer’.

   ·He says that he was subjected to social boycott from his Sunni neighbours.

   ·He says that he lost his job.

   ·He says that from July 2011 he started receiving threatening phone calls from local extremists forcing him to file a complaint with the police but the police didn’t act on his complaint.

   ·He says that also in July 2011 he was threatened after he disclosed plans to set alight a Chapel from the extremists in response to the burning of the Koran in the United States.

   ·He says that in August 2011 his house was ransacked, that he was beaten up by the extremist groups, that his arm was broken and that he was hospitalised for five days. He says that again he lodged a police report but there was no action taken on his complaint.

   ·He says that in September 2011 that he and his Christian friend were attacked by an unidentified “bike-borne” gang and that the attacker was later followed up with a threatening phone call.

   ·He says again in 2011 he was arrested by police on a false charge of blasphemy by a radical Muslim neighbour and that he was abused and humiliated whilst in custody. He says that the charge was not prosecuted and he was released after paying a bribe.

   ·He says in October 2011 he was again attacked at his own home and beaten by local Muslim extremist with rifle butts.

   ·He says that his parents met with influential people to smooth things over but that was unsuccessful.

5. The Tribunal did not accept the applicant as providing truthful accounts and the evidence as being credible. The Tribunal’s reasons set out its concerns as to inconsistencies in the material in the evidence of the applicant. Quite clearly, the Tribunal’s decision is one based on its findings in respect of matters of fact and significantly in issues of credit.

6. As set out above, the applicant raises two grounds of complaint. They are not particularised in any affidavit or written submissions. A considerable indulgence was granted to the applicant today in the making of oral submissions with some leading from myself to elicit any material he wished to put to the Court.

7. In respect of the applicant’s complaint that the Tribunal’s decision is effected by an error of law, perhaps the most notable submission was the final one made with the assistance of his interpreter being that the applicant is not legally trained and by representing himself he is not in a position to identify any error of law.

8. In his previous oral submissions the applicant effectively informed this Court that he was aggrieved by the fact that he put material to the Tribunal but the Tribunal did not accept the veracity of his submissions, his argument and the material put by him.

9. It is the Tribunal who is the determiner of fact and credit and whatever I might think is irrelevant to that process because this Court does not sit as a third forum for a hearing of the application on its merits but is limited to determining whether there is an error of law, a jurisdictional error, in the process of the Tribunal. That being said, the only conclusion I can reach in respect of the first matter of complaint is that the applicant is aggrieved by the decision of the Tribunal but does not raise or particularise any error of law made.

10. Secondly, the applicant in his application complains that he was denied procedural fairness. Perhaps it should be noted in these reasons that at the commencement of his submissions the applicant attempted to adduce further evidence which apparently was material by way of photographs but which significantly post-date the Tribunal’s decision. Quite properly objection was taken to the adducing of that evidence. Again, it is not the role of this Court to sit as the adjudicator of fact and credit and, this evidence could not be received. I accept the difficulties the applicant has in not having English as his first language. In respect of the second matter of complaint the only interpretation I can put on his oral submissions in respect of procedural fairness was a further repetition that the assertions of fact and of the material that he put before the Tribunal did not satisfy the Tribunal and, as I have said, that is a matter for the Tribunal.

Conclusion

1. In conclusion, firstly, whilst I accept the adequacy of the reasons given of the applicant for his non-attendance at the last Court date, I am not satisfied that the applicant has raised any error of law or indeed particularises any absence of procedural fairness in the Tribunal in its consideration in his application. That being the case, I can find no merit in the substantive application and hence the application for reinstatement will be dismissed. 

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

Date:  4 September 2015