MZAIH v Minister for Immigration

[2015] FCCA 1529

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAIH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1529

Catchwords:
MIGRATION – Application for judicial review of a decision of the Refugee Review Tribunal – application for reinstatement following non-appearance by the applicant at the hearing and dismissal of the application – considerations on reinstatement applications – reasonable and adequate explanation given by the applicant – no reasonable prospects of success on the substantive application – application for reinstatement dismissed – consideration of prejudice – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: MZAIH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1446 of 2014

Judgment of: Judge McGuire

Hearing date: 3 June 2015

Date of Last Submission: 3 June 2015

Delivered at: Melbourne

Delivered on: 26 June 2015

REPRESENTATION

Solicitors for the Applicant: In Person

Counsel for the Respondents: Mr Petrie

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application in a case filed 7 May 2015 be dismissed.

2. The applicant pay the first respondent’s costs fixed in a sum of $2,730.00 contingent upon there being no objection by the applicant in writing within seven days of these orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1446 of 2014

MZAIH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant makes application for reinstatement of the proceedings. The application was listed for judicial review in this Court on 5 May 2015. There being no appearance by or on behalf of the applicant on that day at 10.00am, the application was dismissed with an order for costs.

2. The applicant filed an affidavit in support of his application on 7 May 2015 being only 2 days after the hearing and deposing that he had misunderstood the address of the Court on the hearing date. He says that he went to the first respondent’s offices in Collins Street, Melbourne given that that address appeared on Court documents. He says that his misunderstanding is compounded by his lack of proficiency in the English language. He says that in any event he arrived at the Court at 11.00am.

3. The applicant now appears in person. He is assisted by an interpreter.

4. The application for reinstatement is opposed on two bases being, firstly, that the applicant’s explanation is not satisfactory and, secondly, that there is no merit to his substantive application.

5. The Federal Circuit Court Rules 2001 (Cth) at r.16.05(2)(a) provides the Court with the power to vary or set aside the Court’s judgment after it has been entered and if the order is made in the absence of a party.

6. The Court has discretion as to whether or not it sets aside its judgment and reinstates the application. In exercising that discretion the Court is to consider the following:

   i) The adequacy of the applicant’s explanation for not attending at the hearing;

   ii) The balance of any prejudices that might flow to either party from the exercise of discretion one way or the other and the extent that any prejudice might be addressed by an order for costs or other relief;

   iii) Whether the applicant has a reasonable prospect of success on the substantive application.[1]

   [1] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]

7. I have considered the applicant’s explanation for his non-attendance at Court. I accept that he did attend albeit at 11.00am. I accept that his misunderstanding of the address on a Court document is reasonable given his lack of skills in the English language. I accept that he acted prudently in filing his application for reinstatement. Consequently, in respect of his explanation for non-attendance, I accept the applicant’s evidence and find that explanation to be adequate and reasonable.

8. In respect of the merits of the substantive application I note that the applicant filed no written submissions in support of that application. Consequently, and without opposition from Counsel for the first respondent, I invited the applicant to make oral submissions. Leaving aside submissions which tended towards the merits of the Tribunal’s exercise of discretion, the only submission that the applicant makes is in accordance with his application filed 17 July 2014 which offers only one ground of complaint “The Tribunal failed to properly consider all of my claims”.

9. The applicant now elaborates that the Tribunal did not “properly consider” two documents he provided in evidence.

Background.

1. The application seeks a Protection (Class XA) visa (“the visa”).

2. The applicant (and his co-applicants) are citizens of Lebanon and made applications for visas on 10 October 2012. The Delegate determined to refuse the grant of visas on 9 July 2013. The applicants appeared before the Tribunal on a merits review on 20 October 2013 with the Tribunal’s determination not handed down until 1 July 2014.

3. The applicant claims fear of persecution in Lebanon on the following basis:

   i) His political beliefs;

   ii) He will be subjected to torture, cruel inhumane treatment, punishment or degrading treatment;

   iii) That he joined an Islamic Aid Agency and he had been providing aid to Syrian Refugees who fled into Lebanon.

   iv) That he used his delivery van to deliver medical equipment; and

   v) That he was accused of smuggling weapons into Syria.

4. The Tribunal’s reasons disclose findings of credit contrary to the applicant [21]. The Tribunal did not accept any of the applicant’s claims [22]. The Tribunal did not place weight on any of the documents provided by the applicants [23].

5. As set out above, the applicant makes only one ground of complaint in respect of the Tribunal’s decision and now particularised as a failure to consider the documents that he put before the Tribunal.

6. The reasons and the chronology confirm that the applicant was granted indulgences by way of adjournments to provide further information. The Tribunal’s reasons at [21] state:

   On 13 February 2014 the applicant sent in two documents with translations. The most relevant of these is a letter from Abdul Rahman Al Kik. In this letter Mr Al Kik certifies that applicant one was an active volunteer in humanitarian and charity activities in order to help needy people and has good character. He goes on to say that applicant one was active in different associations, including Committees Association for Follow-Up, and Social Justice Charity Association, and that this letter is given to applicant one by the Committees Association for Follow-Up, because he was working for this same association. The letter goes on to state:

   In the certificate, no date of issue was given, nor were the seat and address of the association mentioned. That was cause by the fact that the association was not at that time authorised by the Lebanese Government. Furthermore, the Association was encountering many internal problems.

7. At [22] the Tribunal notes:

   “The number of explanations for why there is no address or contact details on the letters on the Departmental files. I note that the applicants have not submitted originals of the letters…”

8. Following at [22] the Tribunal engages and considers the evidence and finds:

   I have considered the explanations offered by the applicant at hearing, and those supplied by Mr Al Kik in the letter. I find that the explanations given by applicant one at the hearing are implausible, divergent and contradictory – he first claimed that perhaps the contact details might have been left off because people might use letters such as this to scam Lebanese-Australians out of money that they could pretend was for aid to people back home. However, he later claimed that the head of the association had asked applicant one if he should add the contact details and applicant one had said there was no need to, as the stamp is important and cannot be added, so there was no need… The letter from Mr Al Kik puts forward an alternate explanation, that the association was not authorised by the Lebanese government, and that it was encountering many internal problems. I do not understand, if this is the case, why the head of the organisation would not have discussed this with applicant one when the head of the organisation was at the point of adding the contact details and the applicant told him he did not need to. I find these explanations implausible. I do not accept these explanations because firstly, the translated letter (Df. 105) provides a ‘license number’. If this is not authorisation with the Lebanese government then this has not been explained by the applicants or Mr Al Kik. Therefore the claim that these details were not included because it was not authorised appears to be false, but this explanation also does not explain, without more, why the contact details would not be provided but the logo and seal would be – the explanation does not make sense. Further, the second explanation that the organisation was having internal problems is vague and without more does not explain my concern at all. Neither of these explanations were raised by applicant one at the hearing, despite him claiming that he had spoken to the head of the organisation at the time the letter or letters were being written. I further note that the name of the association differs between those letter submitted to the delegate and the letter from Mr Al Kik, with no explanation for this difference. For all of these reasons I find that the explanations provided by applicant one and those of Mr Al Kik are not true. For the above reasons I do not accept any of the explanations proffered for why there are no address or contract details on the letters allegedly provided from the Philanthropic Association; Action Committees for Cultural and Social Development. I therefore find that the document which is translated at Df. 105 is a fake document. I give no weight.

9. Contrary to the applicant’s submission in Court before me, It is evident from the above that the Tribunal did consciously engage in the issue of the legitimacy of the documents provided by the applicant. Questions of weight attributed to the evidence are matters for the Tribunal and not for this Court. There being only one ground of complaint, I am not satisfied that the applicant has a reasonable chance of success on his substantive application should it be reinstated. In the circumstances of this being an application for reinstatement, I place significant weight on this consideration.

10. Thirdly, I turn to issues of prejudice. The prejudice to the applicant by me exercising my discretion not to reinstate his application is obvious. Nevertheless, that must be seen within the context of my consideration of the merits of that substantive application and hence any argument of prejudice is mitigated accordingly and it is well established that prejudice alone is not determinative of such an issue.

Conclusion.

1. I am not of the view, given the above, that my discretion should be exercised in favour of this applicant. Consequently, the application for reinstatement will be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 26 June 2015