MZAGD v Minister for Immigration

[2015] FCCA 3532

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAGD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3532

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – application dismissed for non-appearance – reinstatement application  – challenge to merits decision – inadequate explanation for absence from hearing – no reasonable prospect of success in substantive application – reinstatement application dismissed.

Applicant: MZAGD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1224 of 2014

Judgment of: Judge Riley

Hearing date: 11 December 2015

Date of last submission: 11 December 2015

Delivered at: Melbourne

Delivered on: 11 December 2015

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Counsel for the first respondent: Oliver Young

Solicitors for the first respondent: Sparke Helmore

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

1. The application filed on 8 September 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $1,000.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1224 of 2014

MZAGD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application to reinstate a proceeding that was dismissed for non-appearance. The substantive application was for review of a decision of the Refugee Review Tribunal (“the tribunal”).  The matter was listed for final hearing on 20 August 2015. However, the applicant did not appear on that date, and the matter was dismissed. 

2. The applicant filed a reinstatement application on 8 September 2015.  That application came on for hearing at 10am this morning. At that time, the applicant told the court that he needed an interpreter, even though he had indicated in the original application that he did not require an interpreter.  In any event, the matter was stood down until 2.30pm today to enable an interpreter to attend.

3. When the court reconvened, the applicant told the court that he had lost his memory due to an accident.  He said he had a medical certificate indicating that he was not fit to attend court.  That medical certificate was dated 18 August 2015.  As such, it is about four months out of date.  It said the applicant had an accident on 25 July 2014, which resulted in various injuries, as well as memory problems.  It said that the applicant is under the supervision of various medical specialists, including a neurologist, an ENT surgeon, a rheumatologist, a psychiatrist, and a physiotherapist.  It said that the applicant is experiencing problems such as memory loss, anxiety episodes, mental blocking and panic attacks.  It expressed the opinion that the applicant could not conduct himself at a court hearing. 

4. The applicant told the court that nothing had changed since that report was written almost four months ago.  He said he was not able to get a more up-to-date medical certificate because his doctor was on leave, and he did not realise it was important.  The applicant did not suggest that all of the medical people he claims to be attending were on leave.  In any event, he ultimately told the court that he was not seeking an adjournment.

5. He told the court that his reason for not attending court on

   
   

   20 August 2015 was that he was not well.  It is difficult to understand why he could not have attended court on 20 August 2015, when he says nothing has changed, and yet he is here today.  The medical report the applicant relies upon does not explain exactly why the applicant could not have attended.  He could, presumably, have come to court on

   
   

   20 August 2015 and told the court exactly what he told the court today.

6. In relation to the prospects of success of the substantive application, the applicant told the court today that the tribunal was like a prosecutor, and was rude and unfair.  The first respondent said that there was nothing on the face of the decision record which showed that the tribunal did not have an open mind. The applicant then said that he did not know that there was a recording of the tribunal hearing. However, as I recall it, the first respondent did not mention a recording. He only referred to the decision record. 

7. In any event, the applicant urged the court to listen to the recording of the tribunal hearing, which he said would show how rude the tribunal had been.  The applicant did not provide a copy of the recording, and nor did he provide a copy of a transcript of the tribunal hearing. 

8. Considering the entirety of this case, I do not consider that it would be worthwhile to adjourn the matter for a recording and transcript to be made available to the court.  It seems to me that there is very little prospect of this ground being successful.  The requirement to establish a reasonable apprehension of bias is quite onerous.  An occasional lapse into rudeness on the part of the tribunal is usually insufficient to establish a reasonable apprehension of bias.  There is nothing in the tribunal’s reasons for decision that supports a claim that the tribunal had appeared to have made up its mind so firmly that it could not be changed.  In the circumstances, it does not seem to me that this ground has a reasonable prospect of success.

9. The history of the matter is that the applicant came to Australia on a student visa on 10 March 2006.  He applied for a protection visa on

   
   

   19 April 2013.  He said that in 2011, he had returned to Sri Lanka for a visit.  He said that he wished to open a restaurant in Sri Lanka.  He said that he approached a government minister, Mr Mervyn Silva, to assist him to open a restaurant.  He said that Mr Silva sought a bribe.  The applicant said he was unable to pay the bribe.  The applicant claimed that he had then tried to expose Mr Silva’s corrupt conduct and conducted a public campaign against Mr Silva.  The applicant claimed that he was kidnapped and assaulted by two masked men two weeks after meeting Mr Silva. 

10. A delegate of the Minister refused the protection visa application on the ground that the applicant’s claims were not credible.  The tribunal also considered that the applicant’s claims were not credible.  The tribunal identified various inconsistencies and discrepancies in the account given by the applicant.  The tribunal considered other claims made by the applicant were implausible.  All in all, the tribunal did not accept that the applicant was a witness of truth. 

11. The tribunal did not accept that the applicant had looked into opening a restaurant in Sri Lanka in 2011.  The tribunal did not accept that the applicant had met Mr Silva.  The Tribunal did not accept that the applicant had engaged in a campaign to expose Mr Silva’s corruption.  The tribunal did not accept that the applicant had been kidnapped and assaulted.  The tribunal considered that the applicant did not face a real chance of being persecuted in Sri Lanka in the reasonably foreseeable future.  For the same reasons, the tribunal did not consider that the applicant faced a real chance of significant harm. 

12. The application to this court had five grounds.  The first ground was that:

    The tribunal has erred in its decision when it says he did not meet with the Minister for plans to open a restaurant in Sri Lanka, as there was ample evidence to support this act. 

13. This ground is seeking impermissible merits review.  This court cannot re-evaluate the facts of the case and come to a different view. The applicant appears to simply be challenging the tribunal’s fact finding on the ground that he does not agree with it.  The tribunal is entitled to make credibility findings and is entitled to reject an applicant’s claims without having evidence to the contrary.  This ground has no reasonable prospect of success.

14. The second ground in the application is as follows:

    The Tribunal has not taken into account reports/information that bribery is rife in Sri Lanka, especially when dealing with government departments and local authorities. The applicant should at least have been given the benefit of the doubt, re this allegation. 

15. The tribunal specifically said that it had taken into consideration independent information cited in the applicant’s statement attached to his protection visa application and his evidence.  I have no reason to doubt that the tribunal took into account any information that the applicant provided. 

16. Taking evidence into account does not necessarily mean that the tribunal will accept it without question.  The tribunal could well have accepted that corruption or bribery is rife in Sri Lanka without necessarily accepting that it had occurred in the applicant’s case.  It does not seem to me that this ground has a reasonable prospect of success.  

17. The third ground in the written application is as follows:

    The applicant had made a detailed story and given this tribunal is conducted on an inquisitorial system as opposed to an adversarial system, it was his expectancy that he would be asked questions in relation to his story and the burden or onus not on him to go through the details.  Therefore to conclude that he did not say in evidence that he was very active running a dishonesty campaign and using this as one of the factors to reject his evidence is clearly an error on the part of the tribunal. 

18. This ground again seeks to challenge the merits of the case.  The tribunal is under no obligation to prompt an applicant to recall all the details of his application.  It is up to the applicant to provide such material and evidence in support as he sees fit.  This ground does not have a reasonable prospect of success. 

19. The fourth ground of review is that:

    The Tribunal’s rejection of his evidence re the phone taping of the conversation with the Minister is based on unreasonable grounds. 

20. The ground of unreasonableness can constitute jurisdictional error.  However, the question is not whether the applicant disagrees with the relevant finding, or whether the court would not have made the same finding on the same evidence. The question is whether the finding was unreasonable in the legal sense. 

21. The tribunal’s finding about the taping was based on inconsistencies in the applicant’s evidence about what he had expected to occur at the alleged meeting with Mr Silva.  The finding was also based on what the tribunal considered to be an implausible account offered by the applicant.  The tribunal put to the applicant during the hearing that it found it far-fetched that he would have been able to start the tape recording during the course of the meeting directly in front of Mr Silva.  The tribunal did not accept the applicant’s response or explanation of this.  In all the circumstances, it seems to me that the tribunal’s conclusions about the taping were not unreasonable in the legal sense.  I do not accept that this ground has reasonable prospects of success.

22. The fifth ground in the written application is that:

    The tribunal has erred in that it comes to the conclusion that there are not substantial grounds for believing there was a real risk the applicant would be subjected to significant harm because of his political opinion.  Also, substantial grounds include the current political situation in Sri Lanka. 

23. The applicant had suggested that he had an association or a political opinion in support of the United National Party (“UNP”). 

24. The tribunal noted, in paragraph 38 of its reasons for decision, that the delegate’s decision indicated that the applicant had clarified that he did not fear harm in Sri Lanka as a result of his support for the UNP.  The tribunal then said that, given its findings about the applicant’s general credibility, it had serious doubts that he or his family were in any way associated with the UNP.  However, the tribunal went on to say that, even if the applicant or his family did have an association with the UNP, the tribunal did not accept, on the basis of the applicant’s evidence, that he had a subjective fear of harm for reasons of his, or his family’s, alleged UNP political opinion, or his family’s political profile.  It seems to me that those conclusions were open on the evidence before the tribunal, and this ground does not have a reasonable prospect of success.

25. I have been unable to discern anything else in the tribunal’s reasons for decision, or decision-making process, which is indicative of jurisdictional error.  As there does not seem to be any reasonable prospect of the applicant establishing a jurisdictional error, and as the applicant’s claims regarding his reasons for not attending the hearing on 20 August 2015 are not entirely adequate, I am not persuaded that the proceeding should be reinstated. Consequently, the application will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 14 January 2016