MZAPK and Ors v Minister For Immigration and Anor (No.3)

[2017] FCCA 3341

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAPK & ORS v MINISTER FOR IMMIGRATION & ANOR (No.3) [2017] FCCA 3341

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – application for reinstatement – substantive application dismissed for non-appearance – inadequate explanation for non-appearance – no arguable ground of review.

Cases cited:

MZAPK & Ors v Minister for Immigration & Anor [2017] FCCA 2668

First Applicant: MZAPK

Second Applicant: MZAPL

Third Applicant:

MZAPM

BY HIS LITIGATION GUARDIAN, THE FIRST APPLICANT

Fourth Applicant:

MZAPN

BY HER LITIGATION GUARDIAN, THE FIRST APPLICANT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 2589 of 2014

Judgment of: Judge Riley

Hearing date: 22 December 2017

Date of last submission: 22 December 2017

Delivered at: Melbourne

Delivered on: 22 December 2017

REPRESENTATION

Advocate for the first applicant: In person by telephone

Solicitors for the first applicant: None

Advocate for the second applicant: In person by telephone

Solicitors for the second applicant: None

Advocate for the third applicant: First applicant

Solicitors for the applicant: None

Advocate for the fourth applicant: First applicant

Solicitors for the fourth applicant: None

Counsel for the first respondent: Xuelin Tao

Solicitors for the first respondent: Clayton Utz Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz Lawyers

ORDERS

1. The title of the proceeding be amended so that the name of the second respondent is “Administrative Appeals Tribunal”.

2. The application for reinstatement filed on 3 November 2017 be dismissed.

3. The applicants pay the first respondent’s costs of the reinstatement application filed on 3 November 2017 fixed in the sum of $4,931.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2589 of 2014

MZAPK

First Applicant

MZAPL

Second Applicant

MZAPM

Third Applicant, by his litigation guardian, the First Applicant

MZAPN

Fourth Applicant, by her litigation guardian, the First 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 order dismissing the proceeding for non-appearance was made on 23 October 2017.  The application to reinstate was filed on 3 November 2017.  The reinstatement application first came before the court for hearing on 16 November 2017.  On that occasion, it was adjourned until today, that is, 22 December 2017. 

2. In considering an application for reinstatement, the court considers:

   a)the reason for non-attendance;

   b)the length of the delay in filing the application to reinstate; and

   c)the prospects of success of the underlying application.

3. In the present case, the applicants have supported the reinstatement application with an affidavit sworn or affirmed by the first applicant on 3 November 2017.  In that affidavit, the first applicant said that he had a medical condition which caused him to have severe pain and, for that reason, he could not even answer his mobile telephone on 23 October 2017.  The court had previously indicated to the first applicant that, because of his medical condition, he could attend court by telephone.  He had provided medical certificates indicating that he could not attend court.  However, those medical certificates did not say that he could not attend a hearing by telephone.

4. The court had also indicated, on the basis of a concession by the Minister, that the first applicant could have whatever breaks he needed during the hearing because of his medical condition.  However, as was explained in the written reasons[1] for the dismissal that were initially provided orally on 23 October 2017, the first applicant did not provide any material substantiating his inability to appear by telephone on that day.  The court made a number of attempts on 23 October 2017 to telephone the applicants on two mobile telephone numbers, all without success.

   [1] MZAPK & Ors v Minister for Immigration & Anor [2017] FCCA 2668.

5. The position is that the first applicant has provided no medical evidence that he was unable to attend court by telephone on 23 October 2017.  There is no evidence that the second applicant, who is the first applicant’s wife, was unable to attend court, or answer the mobile telephone, on 23 October 2017.  In these circumstances, it seems to me that the applicants’ attempt to explain their failure to appear on 23 October 2017, by telephone, is inadequate. 

6. The delay in filing the reinstatement application was only a couple of weeks.  It is not significant.

7. In relation to the prospects of success of the underlying application, the matter has a very long history.  The first and second applicants are a married couple.  They first arrived in Australia on 24 March 2009 with their son, who is the third applicant.  The fourth applicant is their daughter.  She was born in Australia.  The first, second and third applicants arrived in Australia, pursuant to a student visa held by the second applicant.  It seems that the second applicant stopped studying in 2010.  Since August 2011, the applicants have not held any substantive visas for Australia.

8. They applied for protection visas on 11 June 2013.  The first applicant attended an interview with a delegate of the Minister on 19 December 2013.  On 25 March 2014, the delegate refused the protection visa application.  The delegate refused the applications for reasons of credibility.  The delegate’s reasons included:

   a)the applicants’ immigration history;

   b)their delay in seeking protection; and

   c)the fact that the applicants had had the opportunity to seek asylum in a number of other countries since 2005. 

9. On 16 April 2014, the applicants applied for review by the Refugee Review Tribunal (“the Tribunal”).  The applicants attended a hearing before the Tribunal on 3 July 2014.  The first and second applicants presented evidence and arguments.  The hearing was cut short because the second applicant fainted outside the hearing room.  The hearing resumed on 25 August 2014.  The first and second applicants attended on that date.  On 8 December 2014, the Tribunal affirmed the delegate’s decision. 

10. On 19 December 2014, the applicants filed their application to this court.  The matter was listed for final hearing on 18 July 2016.  However, there were numerous adjournments for reasons associated with the first applicant’s health.  There was also an adjournment due to inadequate interpretation.  The Minister consented to most of the adjournments.  The matter was eventually dismissed for non-appearance on 23 October 2017. 

11. The first applicant claimed that he feared persecution because he had been a witness to the Gujarat riots in 2002.  In those riots, many Muslim people were killed.  He claimed that he gave evidence in court against the perpetrators.  He said that the police and political parties had attacked and threatened him for this reason. 

12. The first applicant provided a copy of his passport which showed that he had travelled to a number of countries in Asia in 2005 and had visas for travel to other Asian countries.  The passport also showed that the first applicant had travelled to the United Kingdom in 2005 for two weeks.  The passport showed that the first applicant was issued with a multiple entry visa on 12 November 2008 which permitted him to enter the United States.  However, he did not do so. 

13. The second applicant’s passport showed that she travelled to the United Kingdom in 2005 for two weeks and a visa permitting multiple entries into the United States.  The third applicant’s passport also showed a multiple entry visa for the United States. 

14. The first applicant provided, with his protection visa application, a number of media articles dealing with the Gujarat riots.  However, he did not provide any court documents showing that he had been a witness in any legal proceedings arising from the Gujarat riots. 

15. In addition to the claims in relation to events in India, the first and second applicants provided medical information regarding their second child who was born here and who has a bilateral cleft lip and palate.  There was also medical evidence that the child would need two operations in her first 12 months, and then would need to be reviewed at periodic intervals until she turns 18.

16. After the first Tribunal hearing, the first applicant filed a statutory declaration made on 29 July 2014 in which he took issue with the standard of interpretation.  He said that the interpreter missed the word “Muslim” and interpreted it as “India”.  That was the only example given, although it was alleged that there were others.  The Tribunal addressed interpretation issues in its reasons for decision.  The Tribunal considered that the issue raised about the interpreter missing the word “Muslim” did not have any effect on its consideration of the claims.  The Tribunal noted that, at the second hearing, there was a different interpreter, about whom no issues were raised.  The Tribunal noted that the combined duration of the two hearings was about five hours, of which two thirds was in the second hearing.  The Tribunal did not consider that the interpretation had any effect on its assessment of the claims. 

17. The Tribunal considered that the first applicant’s claim to have been a witness to the Gujarat riots was not plausible.  The Tribunal noted that the first applicant came from a completely different area of India and found it an extraordinary coincidence that the applicant would have been at the Gujarat riots and then, later, at the Gulbarg Society massacre, which occurred on 28 February 2002.

18. The Tribunal noted that the applicant had not provided copies of any court documents identifying him as a witness, even though he claimed to have given evidence in court.  The Tribunal noted the first applicant claimed to have been in hiding for many years in India, but not until 2004.  The Tribunal noted that the first applicant had not been harmed in that time.  After 2004, the first applicant travelled outside India, by himself, to three Asian countries, and travelled to the United Kingdom with the second applicant for two weeks in 2005. 

19. In 2008, the first, second and third applicants obtained their 10 year visas to the United States, although they did not travel there.  The Tribunal analysed this visa history and considered that it added to its concerns about the credibility of the applicants’ claims. 

20. The Tribunal also noted that the first applicant came to Australia in March 2009 on his wife’s student visa and waited for over four years before applying for protection in Australia.  The Tribunal did not accept the applicants’ explanation for that delay. 

21. The Tribunal also considered issues about the fourth applicant’s cleft palate but did not consider that there would be any persecution on that basis.  The Tribunal also considered the complementary protection grounds and found that they did not apply in this case.

22. The Tribunal specifically noted that the first applicant told the Tribunal that he would not have a subjective fear of harm on account of being a Muslim but for the fact that he had witnessed the events of February 2002.  The Tribunal affirmed the delegate’s decision. 

23. The application to this court filed on 19 December 2014 has one ground.  It is:

    The tribunal denied me procedural fairness because they didn’t give me a fair hearing.

24. The affidavit in support of the application filed on 19 December 2014 does not shed any light on that claim, nor does the affidavit affirmed on 3 November 2017 in connection with the reinstatement application. 

25. The applicants filed written submissions on 18 December 2017.  Those submissions take issue, firstly, with the delegate’s decision.  However, that is not a matter this court can consider.  The applicants then raise other issues, namely that:

    a)the Tribunal did not consider substantial grounds for believing there is a real risk the first applicant will suffer significant harm upon being returned to India;

    b)the Tribunal failed to have regard to the first applicant’s personal circumstances; and

    c)the decision was unfair.

26. The Tribunal did, in fact, consider whether there were grounds for believing that the applicants faced a real risk of significant or serious harm.  The Tribunal did look at the first applicant’s personal circumstances.  The Tribunal considered the position of the fourth applicant and the availability of health care for her.  It does not seem to me that the Tribunal’s decision was unfair in any way that could move the court. 

27. The first applicant also told the court that there was now a Hindu ruling government in India, which could have an impact on Muslims.  However, as the Tribunal noted in paragraph 87 of its reasons for decision, the first and second named applicants did not claim to have a well-founded fear for reasons of being Muslim.

28. The first named applicant specifically told the Tribunal at the first hearing that he would not have had a subjective fear of harm had it not been for the events of February 2002, which he claimed to have witnessed.  The issue about India now having a Hindu government is not a claim that could be said to arise on the materials. 

29. The first applicant raised in his written submissions issues about the fourth applicant’s medical condition.  However, the Tribunal addressed those issues.  The first applicant also said in his written submissions that the Tribunal had misunderstood his protection claims.  However, the first applicant has not identified anything that the Tribunal actually misunderstood. 

30. The applicants said in their written submissions that the delegate got a number of issues wrong.  However, that is the reason that there is provision for review by the Tribunal.  This court is only permitted to review the Tribunal’s decision and decision-making process. 

31. The applicants said in their written submissions that:

    [The] Tribunal did not look in to whether an applicant is a victim or not by Gujarat riots by Hindu extremists… 

    However, the Tribunal clearly did look at those matters.  This is no more than an application for merits review.

32. The applicants said that the Tribunal did not accept that the first applicant was at the Gujarat riots.  However, this, again, merely seeks merits review.  The applicants allege that the Tribunal took into account irrelevant considerations but did not say what those irrelevant considerations were.  The applicants said the Tribunal’s credibility findings were not open to it.  However, they do not explain why that was so.

33. The applicants said that they were not given the proper opportunity to give information or submissions.  However, the Tribunal conducted two hearings that extended over five hours and the applicants were permitted to provide post-hearing submissions and evidence but did not do so.  The Tribunal has considered the various claims.  The Tribunal invited the applicants to two hearings.  The Tribunal made a decision that was open to it on the evidence. 

34. In oral submissions before this court, the first applicant raised an issue relating to bias.  The first applicant said “the Tribunal was just sitting there to refuse my visa”.  However, that has not been substantiated in any way.  The Tribunal’s reasons for decision show that the Tribunal considered the matter carefully and comprehensively.

35. The Minister conceded that the Tribunal made two errors in paragraphs 91 and 93 of its reasons, where it referred to the third named applicant when it should have referred to the fourth named applicant.  However, nothing turns on this. 

36. All in all, I am not persuaded that there is any arguable error in the Tribunal’s decision or decision-making process.  In addition, the applicants have not adequately explained their failure to attend court by telephone or otherwise on 23 October 2017. 

37. Consequently, the application for reinstatement filed on 3 November 2017 must be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date:       22 January 2018