MZZVW v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 130

[2015] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M42 of 2015

B e t w e e n -

MZZVW

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 21 MAY 2015, AT 10.13 AM

Copyright in the High Court of Australia

COURT OFFICER:   No appearance, your Honour.

MR A. ALEKSOV:   Your Honour, I appear for the Minister in this matter.  (instructed by Sparke Helmore Lawyers)

HIS HONOUR:   Mr Aleksov.

MR ALEKSOV:   There is nothing beyond our written submissions on which I wish to rely.

HIS HONOUR:   Thank you, Mr Aleksov.

The plaintiff is a citizen of Pakistan who was born on 29 June 1978.  He arrived in Australia on 20 March 2010 on a Temporary Business Entry (Short Stay) (Class UC) Subclass 456 visa as a member of a business delegation which had been invited to Australia by the High Commissioner for Pakistan in Canberra.

On 28 July 2011, the plaintiff submitted an application for a protection visa, claiming that he feared harm from the Taliban by reason of his actual or imputed political opposition to their attitude to education and, in particular, to their attitude to the education of women.  On 6 March 2012, a delegate of the Minister rejected the application.

On 16 March 2013, the plaintiff applied to the Refugee Review Tribunal for review of the delegate’s determination.  The Tribunal found that the plaintiff’s claims gave rise to a claim under the Refugee Convention but only on the basis of his imputed political opinion and in any event that it was not satisfied the plaintiff genuinely believed that he faced a well‑founded fear of persecution because of either his actual or imputed political opinion. 

In coming to that conclusion, the Tribunal found that supposed Pakistani newspaper articles which the plaintiff submitted in support of his claim were not genuine and that, because of country information as to the ease with which forged documents could be obtained in Pakistan, it could place no weight on alleged police reports on which the plaintiff relied.  The Tribunal also found that aspects of the plaintiff’s claim were inherently improbable and that the delay between the plaintiff’s arrival in this country and the lodging of his application for a protection visa were inconsistent with the actions of someone who genuinely believed that he faced a well‑founded fear of persecution because of his actual or imputed political opinions.  The Tribunal therefore affirmed the delegate’s decision.

On 15 November 2013, the plaintiff filed an application in the Federal Circuit Court for judicial review of the Tribunal’s determination but, after several adjournments had been granted at the plaintiff’s request, the plaintiff failed to appear at the hearing of the application. Judge Hartnett thus dismissed the application pursuant to rule 13.03C(1) of the Federal Circuit Court Rules.

The plaintiff sought leave to appeal from that order to the Federal Court but failed to appear on the day appointed for hearing. Justice Gilmour refused to adjourn and proceeded to deal with the application in the plaintiff’s absence. His Honour concluded that Judge Hartnett had been entitled to dispose of the matter under rule 13.03C(1)(c) and further, and in any event, that the decision of the Tribunal was not attended by sufficient doubt to warrant the grant of leave. In reaching that conclusion, Justice Gilmour observed that, contrary to the plaintiff’s proposed grounds of appeal, the Tribunal had not been obliged to make any further inquiries of its own motion than those which it had in fact made concerning the plaintiff’s alleged political opinions regarding the Taliban, and the apprehension of risk which he alleged he experienced; and that there was good reason to doubt the plaintiff’s credibility, as the Tribunal had done.

The plaintiff’s proposed grounds for certiorari are as follows:

“1.The Court has erred by dismissing the application for leave to appeal on the grounds there was no merit.

2.A draft notice of appeal was filed and that draft notice stated her Honour, whilst dismissing the application because of the non‑attendance of the plaintiff and refusing to grant him extra time, should have proceeded to deal with the matter as per his grounds of appeal.

3.Her Honour states that the tribunal affirmed the decision not to grant the plaintiff a protection visa and then quoted the tribunal’s decision as set out in paragraph 2 of the decision record:  “the tribunal considers that this matter turns essentially on the plaintiff’s credibility and for the following reasons finds that he is not a credible witness and that he has fabricated his protection claims”.

4.The fact that the plaintiff was not present to prosecute his application, should not have been a factor for her Honour to dismiss this matter as per R 13.03C(1)(c).  There was sufficient information provided by the plaintiff both in his application and in his contentions to enable her Honour to examine the decision of the tribunal and then formulate a decision as to whether credibility was the main issue in these proceedings and whether there was a duty to inquire on the part of the tribunal, as per the High Court case of Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.”

The plaintiff’s complaints about the way in which Justice Gilmour dealt with this application for leave to appeal from the judgment and orders of the Federal Circuit Court are misplaced.  As can be seen from the judge’s reasons, he gave close attention to the plaintiff’s contention that the Federal District Court should not have disposed of the matter under rule 13.03.1(c) and concluded, for the reasons stated, that the Federal Circuit Court had been entitled to adopt that course.  Nor is error shown in the reasons for judgment or conclusion.  The argument against them is no more than a bare assertion that they are wrong. 

Equally, no error is shown in Justice Gilmour’s analysis of the merits of the plaintiff’s appeal or Justice Gilmour’s conclusion for the extensive reasons given.  The appeal was without merit.  Once again, the argument is no more than a bare assertion that Justice Gilmour was wrong. 

In the result, I am not persuaded that there is sufficient if any reason to doubt the correctness of Justice Gilmour’s reasons or conclusion to warrant an extension of time.  The application for extension of time is therefore refused with costs.

Adjourn the Court.

AT 10.19 AM THE MATTER WAS CONCLUDED