MZZAR v Minister for Immigration

[2013] FCCA 1146

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZAR & MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1146

Catchwords:
MIGRATION – Refugee Review Tribunal – application to reinstate proceeding dismissed for non-appearance – no reasonable prospects of success – inadequate explanation for non-attendance – application dismissed.  

Legislation:  

Migration Act 1958 s.424AA
Federal Circuit Court Rules 2001 r.16.05

Applicant: MZZAR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1152 of 2012

Judgment of: Judge Riley

Hearing date: 28 June 2013

Date of Last Submission: 28 June 2013

Delivered at: Melbourne

Delivered on: 28 June 2013

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Applicant: The applicant was not represented

Advocate for the First Respondent: Natasha Bosnjak

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Clayton Utz

ORDERS

1. The application in a case filed on 16 May 2013 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $1,661.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1152 of 2012

MZZAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for reinstatement of a proceeding.  The applicant had originally filed an application on 17 September 2012 for review of a decision of the Refugee Review Tribunal. 

2. On 7 November 2012, the proceeding was set down for final hearing on 2 May 2013 at 10am before Judge Whelan.  The applicant did not attend court on that date.  Judge Whelan dismissed the matter after assessing the applicant’s application and concluding that there was no substance in it. 

3. The applicant filed an application in a case on 16 May 2013 in which he sought to reinstate the proceeding. Orders made on a final basis may be set aside under rule 16.05 of the Federal Circuit Court Rules 2001 if the order was made in the absence of a party. 

4. The applicant said, in an affidavit affirmed on 16 May 2013 in support of his application, that:

   a.on the day before the hearing scheduled for 2 May 2013 he had a severe headache and back pain;

   b.he had set the alarm to enable him to attend court, but did not hear it go off;

   c.he only awoke when he received a telephone call from the court asking if he could attend;

   d.he told the court officer that it would take him one and a half to two hours to reach the court; and

   e.the court officer said the court could not wait that long.

   The matter evidently proceeded in the applicant’s absence. 

5. The first respondent has objected to the evidence about the telephone call on the grounds of hearsay.  However, it is not hearsay insofar as the evidence simply recounts what the applicant said and heard.  In any event, it does not assist the applicant.   

6. The applicant told the court today that he was sick on 2 May 2013. 

   
   

   He produced to the court a photocopy of a medical certificate that indicated that he had a medical condition and would be unfit for work from 2 May 2013 to 3 May 2013 inclusive. 

7. I do not consider that this material provides an adequate reason for the applicant’s absence from court on 2 May 2013.  The medical certificate is not evidence in an admissible form.  On the applicant’s own evidence, he was able to get to court on 2 May 2013, albeit some hours late.  The only reason that he did not attend court on that day was that he did not hear his alarm ring.  That is not an adequate explanation for not attending court.

8. The applicant brought the present application reasonably promptly. 

   
   

   It was filed on 16 May 2013, just two weeks after the proceeding was dismissed. 

9. Nothing has been said to the court about prejudice to the respondent if the matter is reinstated.  I accept that, as this is a refugee matter, there could be substantial prejudice to the applicant if the proceeding is not reinstated. 

10. It is also necessary for the court to consider the prospects of success of the underlying application.  The applicant said in his claims before the Tribunal that he was from India.  He said he feared harm in India because he was a member of the Students Islamic Movement of India (“SIMI”).  That is an organisation that has been proscribed by the Indian Government.  He said that he had been imprisoned at various times.  However, the Tribunal did not accept any of the applicant’s claims in relation to SIMI.  The Tribunal found them to be vague, internally inconsistent and implausible. 

11. In his application in a case, the applicant raised two issues with the Tribunal’s decision.  The applicant said that the Tribunal relied on his past immigration history to question his credibility.  The applicant submitted that this was not appropriate.  The history that the Tribunal relied upon is set out at paragraphs 20 to 22 of the Tribunal’s reasons for decision.  Those paragraphs are as follows:

    20.The applicant arrived in Australia on 17 August 2010 travelling on an Indian passport in the name of MOHAMED ISMAIL, Abdul Azeez born 8 April 1975. The applicant travelled on visa subclass UL 679 which was valid until 17 September 2010.

    21.Information contained on the Department’s file indicates the applicant also has the following known alias.

    ·   ISMAIL, Abdul Ajeez, born 00/00/1975

    ·   ABDUL AZEEZ, Mohamed Isamil, born 8/04/1972

    ·   MOHAMED ISMAIL, Abdul Azeez born 8/04/1972

    22.According to information contained on the Department file the following timeline provides a chronology of the identities used by the applicant and his migration history:

    ·   30 July 1999 the applicant applied offshore for a Temporary Business Short Stay UC 456 visa using the identity of Mohamed Ismail ABDUL AZEEZ, born 8 April 1972.

    ·   2 August 1999 the Department refused the applicant due to non bona fides.

    ·   17 August 1999 the applicant was granted subclass UC 456 visa using the identity of Abdul Azeez MOHAMED ISMAIL born 8 April 1972.

    ·   1 September 1999, the applicant arrived in Australia.

    ·   31 March 2004 the applicant approached the Department as a bridging over stayer and was subsequently granted a visa subclass WE 050.

    ·   15 April 2004 the Department monitored applicant’s departure from Australia as a bridging over stayer.

    ·   19 August 2009 the applicant was granted a visa subclass UL 679 using his current identity Mohamed Ismail ABDUL AZEEZ born 8 April 1975.

    ·   6 November 2009 the applicant entered Australia.

    ·   18 November 2009 the applicant’s sponsor contacted the Department to enquire about the applicant’s visa being extended so that the applicant could undertake study to further his prospects of employment when he returns to India. The application was denied by the Department.

    ·   2 December 20102 [sic] the applicant departed Australia.

    ·   29 July 2010 the applicant was granted visa subclass UL 679 using his current identity Mohamed Ismail ABDUL AZEEZ born 8 April 1975.

    ·   17 August 2010 the applicant arrived in Australia.

    ·   On 16 September 2010 the applicant lodged a protection visa application which is subject of the review application.

12. The Tribunal’s reasons indicate at paragraphs 71 and following that the Tribunal put the applicant’s past immigration history to the applicant pursuant to s.424AA of the Migration Act 1958. The Tribunal’s statement of what it said during the hearing under s.424AA of the Act indicates that the Tribunal complied with the procedural requirements relating to its use of the applicant’s past visa and immigration history.

13. The applicant has not challenged the way in which the Tribunal explained the relevant matters pursuant to s.424AA of the Act. I accept that the Tribunal did comply with s.424AA of the Act. In those circumstances, it was entirely appropriate for the Tribunal to consider the applicant’s past immigration history.

14. The applicant also said in his application in a case that the Tribunal relied on country information which was not relevant to his case.  The Tribunal set out certain country information in its reasons.  That country information seems to me to be relevant to the applicant’s case.  There is no substance in this ground. 

15. In the original application to this court filed on 17 September 2012, the applicant said that the Tribunal had cited information that was never put to him. To the extent that that information was country information, it did not need to be put to the applicant. To the extent that information concerned the applicant’s past immigration history, it was put to the applicant, pursuant to s.424AA of the Act. The applicant has not identified any other information that the Tribunal relied upon that was not put to him. Accordingly, this ground is without substance.

16. The applicant also said in his original application to the court filed on 17 September 2012 that the Tribunal’s finding that he was not a SIMI member is not supported by evidence.  The Tribunal rejected the applicant’s claim that he was a member of SIMI on the basis of country information, and on the basis of the applicant’s inability to recall important dates and details of his claim, internal inconsistencies in the applicant’s claims, and the implausibility of important parts of his claims.

17. The Tribunal was permitted to reject the applicant’s claims for those reasons.  The country information was evidence.  In any event, the Tribunal is empowered to reject claims without contradictory evidence if it finds them to be implausible. 

18. For these reasons, it seems to me that the substantive application in this case has very little prospect of success. 

19. The lack of reasonable prospects of success, combined with an inadequate reason for the applicant’s absence from the hearing on

    
    

    2 May 2013, outweighs the possible prejudice to the applicant. 

20. Consequently, the application in a case filed on 16 May 2013 must be dismissed. 

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

Associate: 

Date:  20 August 2013