MZZMQ v Minister for Immigration

[2013] FCCA 1742

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZMQ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1742

Catchwords:
MIGRATION – Application to set aside orders made in absence of applicant – consideration of why applicant not present – consideration of merits of substantive claim – substantive claim articulating no meaningful particulars of error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.16.05, 701
Migration Act 1958 (Cth)

Applicant: MZZMQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 882 of 2013

Judgment of: Judge Burchardt

Hearing date: 19 September 2013

Date of Last Submission: 19 September 2013

Delivered at: Melbourne

Delivered on: 8 November 2013

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Briffa

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The oral application pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth) to set aside the Court’s orders made on 19 September 2013 is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 882 of 2013

MZZMQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The matter before the Court is an application filed on 20 June 2013.  In that application, the applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 24 May 2013, by which the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.  The grounds of application were indicated as:

   “a.    is affected by an error of law; and

   b.    takes into account irrelevant considerations.”

2. A copy of the decision is annexed to the application in error and not to the applicant’s affidavit filed that day.  The affidavit filed on 20 June 2013 merely asserts who the applicant is and purports to annex the decision, which is, as I say, was, in fact, annexed to the application itself.  On 21 August 2013, Registrar Caporale made orders which relevantly provided that the applicant could by 5 September 2013 file and serve any amended application and any affidavits and written submissions.  None of those things took place. 

3. It is noteworthy that the Registrar set the matter down for trial on 19 September 2013 at 9.30 am and counsel for the Minister who appeared today assured me, and I accept, that the applicant was present in court when those orders were made.  The matter was called at 9.45 am and the applicant was not present.  The Minister requested that I dismiss the application because of the non-attendance of the applicant, pursuant to the Court’s rules and I acceded to that request and made a costs order.  At approximately 10.10am, as I understand it from my Associates, the applicant arrived and it proved, fortunately enough, possible to cause the First Respondent’s representative to return to Court. 

4. I explained to the applicant that I had already dealt with the matter and I explained that I would treat his presence as involving an application to set aside those orders pursuant to r.16.05 of Federal Circuit Court Rules 2001.  I explained to the applicant that he would need to explain why he had not been present when the matter was called and to give me some indication as to why it was that his case might involve some prospects of success. 

5. In response to the first question, the applicant said that he had been beaten up, paraded naked and had suffered a lot of mental stress, as a result of which he was not able to get here on time.  The purport of that evidence became clearer a little later on. 

6. He further said that he had come to the Court on 5 September 2013, this being the date provided for by Registrar Caporale’s orders, and told Registry he had no new evidence or submissions and had been told, therefore, that he did not need to file anything.  I am quite prepared to accept his assertions in that regard. 

7. So far as the merits of his case were concerned, I asked first what was the error of law to which he referred in his application.  He said that the Tribunal had found that if he was returned home, there would be no problems and that this was not true.  When I asked him what irrelevant considerations he was referring to in his grounds of application, he said he was not aware of any.  He went on to say, however, that a new problem has arisen.  He is in love with somebody called Julia and last Friday two of Julia’s uncles took him to a factory, broke his iPhone, slapped him and assaulted him, and threatened to kill him if he did not leave Australia within seven days. 

8. He said he was made naked, they took photographs of him, threatened him with a sword and threatened should he not depart Australia, they would find him in whichever State he might be and also kill his family in Sri Lanka.  I pointed out to the applicant that his personal protection is a matter for the police to whom he tells me he has reported the matter in Dandenong.  This Court does not have overarching security functions. 

9. It is well established that where somebody seeks to set aside a judgment entered in their absence in these sort of circumstances, the Court has to be satisfied both as to why it was that the applicant did not attend and as to the merits of the application.  There is plainly no prejudice whatever to the First Respondent in setting the orders aside as it was a matter of only some few minutes’ delay. 

10. I am far from satisfied as to the applicant’s explanation for delay.  His account of injury seems, as a matter of impression, to be somewhat fantastic but I note that he said he had medical evidence to support it.  In the circumstances, I am prepared to accept that he may indeed have been the subject of ill treatment, at least in part, of the sort that he described for reasons of having formed a relationship with a woman whose family regard him as unsatisfactory. 

11. It should be noted that I clarified with the applicant that the problem involving Julia is that her family disapprove of the relationship.  He did not avert to any matter to do with his ethnicity or otherwise or any matter that might relate to the Convention.  It is immediately apparent that this last issue relating to Julia is a simple family dispute arising out of a romantic relationship and, it would appear, involving serious criminal conduct on the part of Julia’s family.  But it is equally clear that this has nothing to do with any Convention related matters and does not give rise to a sur place claim. 

12. So far as the merits of his application as a whole are concerned, it is to be noted that the Tribunal’s reasons for decision, which are set out at Court Book (“CB”) 154-172, were essentially entirely against the applicant.  The Tribunal’s decision appears thorough and to have considered all possible bases on which the applicant’s case might be put.  The Tribunal’s findings were clearly made (in part) in the light of country information applicable to the applicant.  And I note that the Tribunal at paragraph 40 (CB161) made serious adverse credit findings against the applicant.  A fair reading of the Tribunal’s reasons for decision does not, at least to me, identify any error that would give rise to a likely successful application for judicial review in this Court.  The applicant’s grounds, as advanced by him, so far as error of law is concerned, essentially amount to an assertion that the Tribunal reached the wrong conclusion. 

13. Findings of fact and conclusions of this sort are quintessentially matters for the Tribunal and while it is understandable that the applicant does not like the decision, this does not mean that it gives rise to jurisdictional error.  In the light of the apparent weakness of the applicant’s case and the articulation of any grounds that might give rise to any likelihood of success I decline to exercise my discretion to set aside the judgment and orders made.  Accordingly, the oral application will be dismissed. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  8 November 2013