MZZET v Minister for Immigration
[2014] FCCA 214
•20 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZET v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 214 |
| Catchwords: MIGRATION – Application pursuant to r.16.05 of the Federal Circuit Court Rules 2001 to set aside orders made in applicant’s absence – applicant providing reasonable explanation for non-attendance at court – applicant’s prospects of ultimate success doubtful – orders made setting aside earlier orders. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.7.01, 16.05(1) |
| SZCBZ v Minister for Immigration [2005] FMCA 1194 Allesch v Maunz (2000) 203 CLR 172 SZOAR v Minister for Immigration and Citizenship [2010] FCA 777 |
| Applicant: | MZZET |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1682 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 6 December 2013 |
| Date of Last Submission: | 6 December 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 20 February 2014 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The orders made 18 October 2013 be set aside and if necessary, the applicant’s application be reinstated.
The trial of the matter be held on a date to be fixed before a Judge other than Judge Burchardt.
Costs be in the cause.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 1682 of 2012
| MZZET |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks that the Court set aside orders made on 18 October 2013, pursuant to r.16.05(1) of the Federal Circuit Court Rules 2001 (“the Rules”).
On 18 October 2013 I ordered that the applicant’s application be dismissed because of his non-attendance in Court that day, and that he pay the first respondent’s costs.
For the reasons that follow, I propose to exercise my discretion in the applicant’s favour and will set aside the orders made on 18 October 2013, and will reinstate the applicant’s application.
The applicable law
The applicant is self-represented and has not filed any formal legal submissions. No criticism can be advanced of the applicant for that failure, but it does mean that all the Court has to rely on are the submissions of the first respondent and the materials in the Court Book (“CB”).
At the hearing before the Court counsel for the first respondent took the Court to a number of authorities said to be applicable to applications of the sort that the applicant now brings.
The relevant law
In one of the authorities to which counsel referred me, namely SZCBZ v Minister for Immigration [2005] FMCA 1194, Judge Lloyd-Jones (then Federal Magistrate) referred to submissions of the respondent at [14] as follows:
“b)In Capital Webworks Pty Ltd v AdultShop.com Ltd & Ors, Nicholson J gave consideration to the circumstances in which the Federal Court would set aside an order under the provisions of order 35, rule 7(2) of the Federal Court Rules which are in almost identical terms to Rule 16.05 of the Rules. His Honour noted that the discretionary power entrusted to the Court required the existence of exceptional circumstances and he referred to the decision of the Full Court of the Federal Court in Wati v Minister for Immigration & Multicultural & Indigenous Affairs where it was said:
“The authorities there referred to stressed the need for great caution in the existence of circumstances which are quite exceptional.””
In Allesch v Maunz (2000) 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ said at [28]:
“The consideration which informs the power conferred by s 79A of the Act is that the court be satisfied that there was “a miscarriage of justice”. And whether exercising inherent power or a power of the kind conferred by s 79A, a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side. …”
Kirby J said at [47]-[48]:
“47. It has been suggested that there is a particular rule that governs the setting aside of a judicial order made in the absence of a party (or perhaps a witness) where that absence is adequately explained and promptly brought to the notice of the court concerned. In such a case it is said justice ordinarily “demands” a rehearing.
48. I am not inclined to approach the matter as if a special rule of law, universally applicable, solves the problem presented by every such case. First, the ultimate duty of a court, where a legislative provision exists which governs the circumstances of reopening, is to conform to that provision. The court must endeavour to fulfil the expressed requirements and the implications derived as to the purposes for which the power has been provided. Secondly, the considerations that inform a decision permitting, as here, repair of a “miscarriage of justice” are so many and varied that it is impossible to narrow them down to the "demands" of a single consideration unless it be that connoted by the very phrase used in the statute itself. Thirdly, it is desirable, as it seems to me, to treat the considerations applicable to such decisions conceptually and to classify them as impinging upon the two criteria that have for a very long time been viewed as critical to an affirmative decision to set aside a judicial order made in default of the appearance of a party. These are: (1) that an explanation, reasonable to the circumstances, is provided for the party's absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order.”
His Honour went on to say at [50]:
“Similarly, there will be no miscarriage of justice if the party affected by the impugned order cannot demonstrate an arguable case that reopening the matter might reasonably produce a materially different result which is more favourable to that party. …”
In my respectful view the observations of Kirby J are particularly helpful in this instance. It should be noted that the power provided in r.16.05 is not apparently fettered in any way. I would infer that it is a discretion which is at large but which must be exercised judicially. Kirby J’s reference to the two matters a party needs to address seems to me, with great respect, entirely to accord with well-established principle.
The applicant’s explanation for his non-attendance at Court
It should be noted that a perusal of the Court file shows that quite a number of notice of listings were sent to the applicant. He plainly received most of them. This matter was in the docket of another Judge but had to be transferred to me for various reasons. It is clear from the Court file that on 4 September 2013 the applicant was sent a notice of listing for 13 November 2013. It is also clear that a further notice of listing was sent to the applicant on 12 September 2013 indicating that the matter would be heard on 18 October 2013.
As earlier indicated that matter was heard on 18 October 2013, and the now-impugned orders were made. The applicant asserted at the hearing before the Court that he had received the listing for 13 November 2013 and that he had been in correspondence with the first respondent thereafter. The applicant filed his Application to set aside the impugned orders on 15 November 2013. His Affidavit in Support relevantly states:
“I am an India citizen applied for judicial review because the Refugee Review Tribunal denied my natural justice. I could not attend the hearing because I was given the wrong hearing date. When I went for hearing on 13 November 2013, I was told that the hearing took place on 18 October 2013. I believe I have denied justice again. I would like to request you to consider my application in the light of the above circumstance.”
As I understood what the applicant had to say when he was before the Court, he had received the November 2013 notice of listing before he received the October 2013 notice of listing, and had presumed that the former was, so to speak, the more operative.
It seems to me far more probable than otherwise that the applicant did receive both the notices of listing. They were sent to the same address. It seems that he made a decision to attend the latter hearing because it was the one he received first. I note that in fact he had already received a number of earlier notice of listings.
Bearing in mind the prompt way in which the applicant moved to set aside the orders made in his absence, it seems more probable to me than otherwise that the applicant simply misconstrued the correspondence sent to him by the Court. While looked at objectively he should clearly have realised that he was required to attend Court on 18 October 2013, the fact that he has actively prosecuted his case suggests to me that he made no decision, as it were, to take his chances by not attending. I am prepared to accept the applicant’s explanation as one reasonable to the circumstances, to paraphrase the observations of Kirby J.
The merits of the case if a re-hearing were granted
The material in the Court Book
The first articulation of the applicant’s claims is at CB31-32 where a statement is set out. In essence that asserts that the applicant faced risks of Convention harm out of the animosity of Akali Dal members, and in particular MLA Mohan Lal. The statement asserts that the applicant had returned to India several times but had not stayed at his home, and stayed in different places to escape detection. It asserted that he was at risk of being wrongly accused of murder by Mohan Lal, who the applicant asserted had recently killed his own brother and was seeking to blame the applicant for it. The applicant asserted that the police were stooges of the Akali Dal and he would not receive State protection.
The applicant subsequently forwarded records of a Magistrates Court proceeding in India (CB61-65) and other material showing risks of harm in India relevant to the applicant (CB66-81).
The delegate’s decision is at CB95-115. The delegate noted (and I do not understand this to be controversial) that the applicant arrived in Australia on 12 June 2008 as the holder of a Class TU subclass 573 (Student Dependent) visa which expired on 15 March 2012. The applicant returned to India on three occasions between 2008 and October 2011. The applicant had lodged an application for a Protection (Class XA) visa on 12 December 2011 which was deemed invalid, and was sent a Notice of Intent to Cancel his Student visa on 24 January 2012 as the applicant was no longer in a relationship with his spouse. The applicant lodged his current application for a Protection (Class XA) visa on 1 February 2012.
Essentially the delegate did not accept that the applicant had a sufficiently high profile as a Congress Party member to have been likely to have attracted the attention he claimed. The delegate did not accept the alleged records of an attack on the applicant in 2007 and thought that the documentation might be fraudulent, and in any event was unpersuasive. Put shortly, the delegate did not believe the applicant. The delegate also noted the very lengthy delay between the applicant’s arrival in Australia in 2008 and the application for the protection visa.
The delegate dismissed the application accordingly.
I note that the materials in the Court Book include a divorce order in respect of the applicant and his wife, who appear to have been joint applicants. It took final effect on 16 January 2012 (CB147-148).
The applicant does not appear to have filed any further materials before the hearing at the Refugee Review Tribunal (“the Tribunal”).
The Tribunal’s Decision
The Tribunal set out the Application for Review and the Relevant Law at CB151-153. No criticism has been advanced of those matters.
The Tribunal summarised Claims and Evidence at CB153-158. The applicant seems to me to have articulated his claims very much in the same way that they were put in his earlier written materials and before the delegate. I note that the Tribunal traversed with the applicant the delay between the alleged attack in July 2007 and the applicant’s arrival in Australia in June 2008 (paragraph 37, CB155). The primary focus of the applicant’s claims remained however the fear of harm at the hands of the Akali Dal.
The Tribunal noted at paragraph 48, CB157 in relation to the issue of State protection that the applicant had approached the local police about the physical attack against him and made a report. Legal proceedings had eventuated.
Further, the Tribunal traversed with the applicant country information and invited the applicant to comment on information that State authorities were providing a high level of security to political leaders in the Punjab (paragraph 49, CB157).
The Tribunal also traversed the possibility of relocation inside India, bearing in mind that the applicant described himself as a good mechanic with transferrable skills in that capacity (paragraph 50, CB157).
The Tribunal noted that the applicant was able to work in that field in Australia.
The Tribunal set out Country Information at CB158-168. That country information covered matters such as State politics in Punjab, the judiciary, the Akali Dal and political conflict more generally.
Findings and Reasons of the Tribunal are relatively brief and are contained in CB168-171. The Tribunal said at paragraph 130, CB169:
“The Tribunal accepts that the applicant grew up and lived in Punjab state in India. The Tribunal accepts from the applicant’s demeanour and nature of providing his evidence that the applicant was credible when giving his evidence to the Tribunal at the hearing. This includes statements made by the applicant that would not support his claims, such as planning ultimately to return to India.”
The Tribunal at paragraph 131 (CB169) accepted that the applicant “was engaged in activities in support of the Congress party and was targeted by members of the Akali Dal in association to his party support.”
The Tribunal at paragraph 132 (CB169) noted that there was no country information to suggest targeting of Sikh supporters of the Congress Party in Punjab in recent times. The Tribunal noted:
“Relevantly, the fact that the applicant’s complaint and related court proceedings against the Akali Dal were unsuccessful, does not strengthen or corroborate the applicant’s claims on this point.”
At CB170, paragraph 135-136, the Tribunal said:
“135. The Tribunal accepts that recently in India there have been violent clashes between the Congress Party and various Sikh groups including opposing parties such as the Akali Dal. However, there is considerable evidence that state authorities have intervened to provide protection to associates of the Congress party and other political groups in Punjab state in these situations. The Tribunal refers to the country information above in relation to State protection.
136. The Tribunal has noted the applicant’s response to the country information put to him that state authorities were providing a high level of security to political leaders in the Punjab (his own state) and that they routinely intervene in disputes at political gatherings. Although the applicant’s response at the hearing was that the police in Punjab state were corrupt and ineffective, this is inconsistent with his own actions whereby he sought the assistance of the law enforcement authorities and the courts in India for protection and justice for the alleged actions in the past by Mohan Lal and members of the Akali Dal due to his political affiliation to the Congress party. The Tribunal infers from these circumstances that the applicant considers that the state authorities, i.e. the police and justice system are equipped to address the physical violence perpetrated against the applicant and his family and that the state can protect him against the harm which he fears.”
The Tribunal went on at paragraphs 137-138 (CB170) to find that:
“… The Tribunal is satisfied that, although imperfect, the state authorities in India provide an adequate level of protection to the applicant against the harm which he claims he fears. The Tribunal is satisfied that the applicant is afforded effective protection from the state authorities throughout India including, in his home state of Punjab.
138. The Tribunal has also given substantial weight to the comments made by the applicant towards the end of the hearing, where he explained that he does not wish to live in Australia permanently but that he wanted to “have some time to live here peacefully” and seeks only to have a little more time in Australia before he returns. The Tribunal considers that these comments by the applicant are inconsistent with the notion of a well-founded fear of persecution were he to return to India. …”
The Tribunal considered these comments in the context of other comments by the applicant made at the hearing about the length of his stay when he returned to India in circumstances where he claims he feared persecution; that he felt “good over there and decided to live there”; and that he returned to sell his car and other belongings and to close his bank accounts.
On the footing that the applicant was the subject of effective State protection, the Tribunal concluded that the applicant did not face Convention-related harm in India.
The Tribunal therefore did not consider internal relocation in India (paragraph 141, CB171).
The Tribunal went on to consider complementary protection. The Tribunal’s decision in relation to complementary protection was extremely brief (see paragraphs 142-143 and 145).
At paragraph 145, the Tribunal said:
“Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).”
The Applicant’s Oral Submissions at Court
As earlier noted, the applicant had already indicated that he had been in communication with the Department. He said he had given to the Department news cuttings of crime in his home state, and said that he feared for his life. He also referred to hospital reports potentially available about his injuries (as I understood him to say). He said the government was coming to power after five years. He said that there were newspaper articles about massacres and people missing, and that the Akali Government was dealing with drugs. He said, if I understood him correctly and my notes are accurate, that he could not provide that evidence at the hearing itself.
The Grounds of Application
Ground 1 - The Tribunal did not give to the applicant before the hearing the independent information that it had about politics in India. The Tribunal used this information (RRT decision record pages 9 to 18). This was against section 424A of the Migration Act 1958.
The applicant has not advanced in his written materials or oral submissions any further articulation of this ground. As the first respondent’s written submissions correctly point out, s.424A(3) provides that there is no obligation to comply with the section if the information with which it is concerned is not specifically about the applicant or another person, and is just about a class of persons with which the applicant or another person is a member. Put shortly, I accept for present purposes that none of this country information was specifically about the applicant. It was generalised information about the nature of the politics in the Punjab and in India generally.
I note further that the first respondent also submits that the Tribunal canvassed with the applicant the independent country information suggesting that State authorities were providing a high level of security to political leaders in the Punjab (see paragraph 49, CB157).
Ground 1 would seem to me accordingly to face very considerable difficulties.
Ground 2 - The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.
I accept the submission of the first respondent at paragraph 19 of the written submissions:
“This complaint is so general and abstract that it is effectively devoid of content”.
Ground 3 - The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Akali Dal members.
Once again, this ground would appear to face very considerable difficulties. It appears to be merits review, and have pointed that this a number of Federal Court Justices in relatively recent times, not permissible, (see for example, Reeves J in SZOAR v Minister for Immigration and Citizenship [2010] FCA 777 at [22]).
Ground 4 - The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
Once again, this claim would seem to face very considerable difficulty. The Tribunal member did not in fact regard the applicant’s claims inherently as implausible (unlike the delegate) and made a positive credit finding in his favour. The Tribunal however was of the view that the applicant would be adequately protected by the State in the event that he returned to India. Given that the Tribunal had discussed with the applicant in terms the question of protection available to him in his home state of Punjab, it was difficult to see how this ground could be made out.
Conclusion
It is important to remember that the above assessments are not made following a hearing at which the applicant has had an opportunity to attend and be heard. He was however given an opportunity to say whatever he wished at the Court hearing, and I did point out to him that he needed to satisfy the Court as to the reasons for his non-attendance, and his prospects of success.
The findings of the Tribunal seem to me to be extremely cogent. There were a number of other bases upon which the applicant’s behaviour could have been questioned (for example, most particularly his frequent returns to India, and the lengthy period of delay before he filed his protection visa application).
Notwithstanding these observations, and the remarks earlier expressed about the individual grounds of application, it seems to me that, albeit by a fine margin, the interests of justice require that the applicant be given an opportunity to have his case fully heard. His failure to attend Court at the assigned time is, in my view as indicated, sufficiently explained. While the applicant’s grounds of application and matters asserted at trial have not impressed me, the fact is that the applicant’s case has not been tested at a full hearing designated as such. The applicant is not legally represented and his capacity to respond on the run to the technical issues raised is understandable. To have him deported without a hearing seems to me in these circumstances unconscionable.
Nonetheless, I do not believe the matter should be further heard by me. I have expressed considerable doubts in this judgment about the applicant’s prospects of success. The interests of justice require that the matter be considered further by somebody who can bring a completely new mind to the issues to be raised. I will order that the trial be heard before another Judge.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 20 February 2014
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