SZSMM v Minister for Immigration

[2013] FCCA 1886

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSMM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1886

Catchwords:
MIGRATION – Application to set aside discontinuance of proceedings – whether in the interests of justice.

Legislation: 

Migration Act 1958 (Cth), s.425

Federal Circuit Court Rules, rr.13.01, 16.05

Christodoulou v Disney Enterprises Inc and Others (2006) 156 FCR 369; [2006] FCAFC 183
D’Orta-Ekenaike v Victoria Legal Aid and Another (2005) 223 CLR 1; [2005] HCA 12
Maddison v Qualtime Association Inc (2010) 113 ALD 390; [2010] FMCA 25

SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137
SZSML v Minister for Immigration & Anor [2013] FCCA 1253

Applicant: SZSMM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 42 of 2013

Judgment of: Judge Barnes

Hearing date: 5 November 2013

Delivered at: Sydney

Delivered on: 5 November 2013

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the first respondent be amended to read 'Minister for Immigration and Border Protection'.

2. The application in a case filed on 17 July 2013 be dismissed.

3. The applicant pay the costs of the first respondent of the application in a case fixed in the sum of $2,500.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 42 of 2013

SZSMM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 17 July 2013 the Applicant filed an Application in a Case seeking orders that the notice of discontinuance he filed on 22 February 2013 be set aside. He sought that it be set aside pursuant to r.16.05 of the Federal Circuit Court Rules and “the inherent power of the Court to prevent injustice”.  In support of his application the Applicant relied on an affidavit he swore on 2 July 2013.  His application is opposed by the First Respondent.

2. The background to these proceedings is that the Applicant, a citizen of Afghanistan, arrived in Australia in February 2012.  He lodged an application for a protection visa in May 2012.  The application was refused and he sought review by the Tribunal.  He had the assistance of a solicitor/migration agent throughout the course of the Tribunal review.  His adviser made written submissions to the Tribunal in which the bases on which the Applicant claimed to fear persecution and sought complementary protection were addressed in some detail.

3. The court book includes a Tribunal file note recording that the original Tribunal hearing was cancelled because of interpreter difficulties and that the Applicant was informed the Tribunal would not take the proceedings at that hearing into account.  The hearing was commenced afresh with a different interpreter at a later date.  After the hearing the Applicant took the opportunity, through his adviser, to provide further information and submissions in relation to relevant issues, including whether it was possible for him to relocate safely within Afghanistan.

4. In its reasons for decision the Tribunal set out in detail the claims made by the Applicant at various times, including at the Tribunal hearing.  It referred in some detail to independent country information in relation to a number of relevant issues. 

5. The Applicant claimed to fear persecution on a number of bases, in particular on the basis of an imputed political opinion because of his financial support for Hazara schools, including girls’ schools, the donations he made to a Shi’a mosque in a local village and his membership and work with a committee described as the Jaghori Cultural Committee.  He also claimed to fear persecution and significant harm as a Shi’a Hazara on the basis of his religion and ethnicity or race, as well as on the basis that he was a member of the particular social groups of financial supporters of female education in Afghanistan and failed asylum seekers returning from Australia or a Western country.  It emerged in the Tribunal hearing that the Applicant may also be making a claim to fear harm on the basis of what would occur if he was forced to take steps to reclaim land and property in Afghanistan.

6. In its findings and reasons the Tribunal found that the Applicant was not a reliable witness in several respects:  in particular, when discussing the theft of his laptop, when discussing the consequent claim that as a result of the theft the Taliban were looking for him, when providing a chronology of his movements in and out of Iran (where he had lived for some considerable time) and when discussing his ownership of land in Afghanistan.

7. The Tribunal accepted that the Applicant had lived in Iran for much of his life, that he was unable to work there legally, but that he had managed to circumvent this restriction and for many years had a successful business in the construction industry.  It accepted the Applicant had no legal right to enter and remain in Iran and assessed his claims against Afghanistan. 

8. The Tribunal also accepted the Applicant was a Shi’a Muslim and a Hazara.  It considered his claim to fear harm on that basis but having regard to country information to which it referred, the Tribunal did not accept that the Applicant had a well-founded fear of persecution for reason of his race or religion should he return to Afghanistan now or in the reasonably foreseeable future.

9. The Tribunal then considered the Applicant’s individual circumstances, in particular his claims on the basis of imputed political opinion and membership of particular social groups.  The Tribunal accepted for the purposes of the decision that the Applicant’s family had a history of providing funds and equipment to schools and mosques in their local area in Afghanistan (the Dawood area of the Jaghori District) although it remained unclear how much of the funds provided came from the Applicant personally.  The Tribunal addressed the Applicant’s claimed membership of the Jaghori Cultural Committee in the absence of any country information referring to such an organisation.  It accepted, based on the fact that the person he claimed was heavily involved in this organisation was a candidate in Afghan elections in 2010, that the Applicant had some connection to organisations associated with that candidate and through him had arranged to do some work for educational institutions in Jaghori District.  Having regard to the fact that this person continued to work in education and live and travel in Ghazni Province without incident and independent country information about the position of people working for NGOs, the Tribunal did not accept that the evidence before it supported the Applicant’s claim that he was at risk simply because he may have been a member of the claimed organisations. 

10. However, while the Tribunal found the Applicant had tried to overstate his personal involvement in funding schools, it accepted that his family had a history of small scale philanthropic work for the schools and mosques and the community in Dawood in Jaghori District and that this had given him a profile in Dawood and Jaghori higher than the bulk of the population in the area.  The Tribunal was prepared to accept for the purposes of the decision that there was a real chance the Applicant would suffer serious harm if he were to come to the attention of the Taliban because of his family profile as supporters of educational and religious work in the Dawood area of the Jaghori District.  The Tribunal acknowledged that the Applicant came from an area close to the Moqur District that was predominantly Pashtun and where there was a Taliban presence and that there were Taliban checkpoints on the shortest route to Kabul which was via Moqur.  While the Tribunal described the philanthropic work of the Applicant’s family as “small scale”, it also accepted that his profile would put him at a real risk if he came to the attention of the Taliban controlling the road out of Dawood through Moqur. 

11. Hence, the Tribunal accepted that there was a real chance the Applicant would be persecuted for reason of his imputed political opinion as a supporter of female education and financial supporter of Shi’a mosques and that his fear of persecution in the Dawood area of Jaghori District was well-founded. 

12. On the evidence and country information before it the Tribunal was not satisfied that the Applicant would be targeted for reason of his membership of the particular social groups of providers of education funding and financial supporters of female education in Afghanistan, as distinct from on the basis of a local profile that gave rise to an imputed political opinion of being against the Taliban.

13. The Tribunal found that the Applicant’s evidence about his claim that he was at risk throughout all of Afghanistan because the Taliban had obtained his laptop and his photographs had been displayed at a known Taliban checkpoint was unreliable.  It addressed the premises that this claim was based on that the laptop was stolen, that it was stolen by two Pashtun workers and that it had found its way to the Taliban.  While it accepted that the Applicant had a laptop and that it may have been stolen, the Tribunal did not accept it necessarily followed that the laptop had been stolen by two Pashtun workers or that the Applicant had come to the attention of Taliban as a result of the laptop coming into their possession.  It found that the Applicant’s account of the theft was not credible and observed that while he claimed the Pashtun workers had not returned for their wages, he also said he left the area almost immediately after he became aware the laptop was missing and hence he had no knowledge as to whether or not the men had returned.  The Tribunal also found the Applicant’s evidence that some months later, after the departmental interview and before the delegate’s decision, a relative saw some photographs of him at a mosque near a Taliban checkpoint not to be credible.  It found that the Applicant had embellished this claim to bolster his assertion that he would be at risk from the Taliban anywhere in Afghanistan.

14. Insofar as the Applicant claimed he would need to travel around Afghanistan to check on his family landholdings and hence would be susceptible to the Taliban who controlled the roads, the Tribunal found his oral evidence as to his landholdings was unreliable.  Based on the post-hearing clarification that the land was in his brother’s name, the Tribunal found that the Applicant did not himself own any land in Afghanistan.  It did not accept that he would have to travel outside Kabul to reclaim, check on land use or sell the land.  It found he would not be of interest to any person seeking to appropriate the land for their own use.  In addition, it did not accept that he would be of interest to the Taliban for those reasons if he chose to travel on his brother’s behalf and encountered the Taliban en route.

15. The Tribunal also had regard to the Applicant’s other claims but found that he had no well-founded fear of persecution for the reason that he had lived and worked in Iran, left Afghanistan illegally or sought asylum in the West. 

16. The Tribunal considered whether the Applicant would be at risk of serious harm outside his local district in Afghanistan as a result of his profile in his local area as a supporter of female education and Shi’a mosques and his imputed political opinion.  It found, having regard to independent country information, that the Applicant’s claimed fear of persecution in Kabul or elsewhere in Afghanistan was not well-founded and that it was reasonable for the Applicant to relocate to Kabul. 

17. In relation to the reasonableness of relocation to Kabul, the Tribunal had regard to the Applicant’s skills developed in Iran, information about the situation in Kabul, including his brother’s ownership of land there, and the Applicant’s other factual circumstances.

18. In the course of making these findings the Tribunal noted the Applicant’s claim that he had provided a copy of his Taskera to officials on Christmas Island, that it had been lost and that he would have to travel to Jaghori District to obtain a new Taskera.  It accepted that if the Taskera was indeed lost, then the Applicant would have to travel to the district capital of Jaghori to obtain a new one, but found there were safe routes that would not require him to travel through the adjoining Pashtun area.  It did not accept he would be at risk for a Convention reason if he did such travel by other routes, avoiding his home town and the adjoining area, to obtain a new Taskera. 

19. The Tribunal then considered the complementary protection criterion by reference to the Applicant’s claims and the concept of significant harm.  However it found for the reasons set out in relation to the reasonableness of relocation to Kabul that it did not accept there was a real risk of significant harm to the Applicant if he were to relocate.  Nor did it accept there was a substantial risk of significant harm in any dispute over land owned by his brother. 

20. The Applicant sought review of the Tribunal decision by application filed in this court on 11 January 2013.  The Applicant claimed that he had the assistance of a man called Felix, who was described in his affidavit as a teacher he knew from English lessons, although he told the court that he did not have English lessons.

21. In cross-examination, the Applicant acknowledged that it was his signature on the application.  He claimed that he was not sure who wrote out the grounds, but whatever he said they had written.  He agreed that he meant that he made up the content of the grounds.  I observe that this would seem somewhat surprising, given the manner in which the grounds are expressed.  Although given the opportunity to do so, the Applicant did not address the grounds in his application in support of his application to set aside the notice of discontinuance. 

22. Relevantly, after the Applicant filed his judicial review application, the First Respondent filed a response opposing all orders sought.  The matter was listed for a directions hearing on 26 February 2013.  The Applicant filed a notice of discontinuance on 22 February 2013. 

23. In his supporting affidavit the Applicant referred to various attempts to obtain a lawyer after he commenced the judicial review proceedings and his lack of success in that respect.  He claimed that a lawyer, whose name he did not know, told him that even if he did not go to court he needed to fill in another form and send it to court and that if he did not have a lawyer he could not go to court as the court would not accept him.  The lawyer gave him a form to sign and send to the registry.  He thought it would delay or extend the court process.  The form was in fact a notice of discontinuance. 

24. The Applicant told the court that he did not have a solicitor or a migration agent at the time he lodged his application, that he understood he had to attend the court on 22 February 2013, but that he did not particularly want to attend by himself because he was scared and because he had been told if he came by himself he would be “fined” about $8,000.  He agreed that he had asked someone to get him a document that would end his court case.  He acknowledged that he signed the notice of discontinuance and personally faxed it to the court registry on 22 February 2013.  He claimed he obtained the form from a lawyer who he described as being “in the city”, but who was not otherwise identified.  He claimed the lawyer gave him a blank document.  However he later gave evidence that the lawyer had filled in the court file details and that someone else had filled in his name on the notice of discontinuance. 

25. In effect, the Applicant claimed he did not really understand the notice of discontinuance, although his oral evidence in that respect was somewhat conflicting.  He also acknowledged that his brother similarly commenced judicial review proceedings and later filed a notice of discontinuance.  The written submissions for the First Respondent refer to and quote extensively from a decision of Judge Driver in SZSML v Minister for Immigration & Anor [2013] FCCA 1253 in relation to the brother.

26. The Applicant claimed that the lawyer told him that after he filed the notice of discontinuance, his proceedings would not be discontinued, but would be delayed for some time.  I have some difficulty with this aspect of the Applicant’s evidence, as the Applicant later said that he understood that a notice of discontinuance would end the court proceedings, at least until he chose to re-agitate them.  I am of the view that his later concession in this regard reflects the true situation, although the Applicant did think that by filing a notice of discontinuance this would delay his court date or extend the court process.

27. The notice of discontinuance was filed on 22 February 2013.  The Applicant claimed not to recall whether he had received a letter of 6 March 2013 from the Minister referring to the notice of discontinuance and advising him he was liable to pay the Minister’s costs in a specified amount.  The application in a case to set aside the notice was not filed until 17 July 2013.  The Applicant was asked what made him file the application in a case.  The effect of his evidence appeared to be that the Department of Immigration contacted him monthly, advised him that his case was at an end and that he must leave Australia.  When asked when he first realised his case was ended and not delayed, he said he could not say exactly when, but it was a “long time”. 

28. In re-examination the Applicant suggested that his mind was not working properly, apparently by way of explanation for either his circumstances or his evidence. 

29. Under r.13.01 of the Federal Circuit Court Rules, a party may discontinue an application by filing a notice of discontinuance in accordance with the approved form. That is what the Applicant did in this case. As recognised by Judge Driver in SZSML, there is no express power in the Federal Circuit Court Rules to set aside a notice of discontinuance. There is no express power to reinstate proceedings that have been regularly discontinued in accordance with the Rules.

30. Rule 16.05, which deals with varying or setting aside a court judgment or order, is not in point in relation to a notice of discontinuance filed by an Applicant.  However the principles applicable in relation to an application to set aside a notice of discontinuance have been considered in a number of cases discussed in SZSML.  In SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 Ryan J referred to whether there were circumstances that would enable the filing of the notice of discontinuance to be characterised as an abuse of process or that were otherwise such as to enliven the inherent power of the court to prevent injustice. His Honour pointed out that a party who knowingly and voluntarily filed a notice of discontinuance could not assert that his own act should be set aside as an abuse of process, but also suggested that courts “probably” had an inherent power to set aside a discontinuance procured by fraud or duress.  In Christodoulou v Disney Enterprises Inc and Others (2006) 156 FCR 369; [2006] FCAFC 183 the Full Court of the Federal Court accepted that the Federal Court had a power to reinstate discontinued proceedings on grounds of abuse of process, fraud or the like and also, relevantly, that there was authority that a notice of discontinuance could be set aside “whenever the interests of justice dictate that that is the appropriate course” (at [27]).  Also see Maddison v Qualtime Association Inc (2010) 113 ALD 390; [2010] FMCA 25 in which the Federal Magistrates Court observed (at [33]) that “[t]he Court’s assistance ought not be given where a party merely considers that he or she has made a bad bargain and seeks to pursue an action otherwise compromised” and referred to the central tenet of the judicial system that “controversies, once resolved, are not to be reopened, except in a few, narrowly defined, circumstances” (as discussed in D’Orta-Ekenaike v Victoria Legal Aid and Another (2005) 223 CLR 1; [2005] HCA 12 at [34]).

1. There is no suggestion of fraud or duress or that the notice of discontinuance was filed pursuant to an agreement that was void or voidable in the present case.  The evidence about the circumstances in which the notice of discontinuance was completed and filed is not such as to establish that the filing by the Applicant was an abuse of process.  The Applicant himself provided instructions for the completion of the notice of discontinuance which he knowingly signed and faxed to the court.  The notice is clear on its face and not readily capable of being misunderstood.  Insofar as the Applicant appeared to suggest that he understood that the discontinuance would only delay his proceedings and that he did not understand exactly what the effect of the discontinuance was, his evidence in that respect was conflicting.  I do not accept that he was actively misled in some way by an unnamed lawyer from whom he obtained the form.  I am satisfied that he understood that the discontinuance would stop the court process, at least until he sought to re-agitate the proceedings.

2. The limited explanation he provided as to the circumstances and the failure to take action after he filed the notice of discontinuance until some five months later, considered with the evidence as to the circumstances that preceded it, do not establish such injustice as to justify setting aside the notice of discontinuance.  In particular, I am not satisfied the notice should be set aside on the basis the Applicant only intended to delay and not to terminate the proceedings. 

3. I have had regard not only to the explanation provided by the Applicant and the possibility of a degree of misunderstanding on his part, but also to the delay between the discontinuance and the lodgement of the application in a case after the Applicant was clearly made aware that his case was at an end.  As indicated, there are some inconsistencies in the Applicant’s explanation.  His affidavit evidence, including as to how he obtained the notice of discontinuance, is vague and unsatisfactory.  There was a considerable delay of some five months between the discontinuance and the application in a case in circumstances where the Applicant conceded that he had known for a long time that his proceedings were at an end. 

4. Moreover, I have also had regard to the absence of arguable grounds with reasonable prospects of success in the original application.  The grounds in the application for the most part seek impermissible merits review.  The first ground asserts that the Tribunal was in error to reject the Applicant’s claim that his laptop (with personal documents and photographs of himself and his brother visiting girls’ schools and dancing at weddings in the presence of women) was in the possession of the Taliban.  Specific reference was made to paragraphs in the Tribunal decision addressing these issues.  However the Applicant’s disagreement with the Tribunal’s finding in this respect is not demonstrative of any jurisdictional error.  Rather he takes issue with the merits of the Tribunal’s factual findings. 

5. Similarly, ground 2 is that the Tribunal “was in error in discounting the evidence of the Applicant’s claim that his wife’s cousin had seen two pictures of him taken from the laptop at a Taliban checkpoint”.  Again, this ground seeks impermissible merits review.

6. The third ground is that the Tribunal was in error when it discounted the danger the Applicant faced from the Taliban because he and his brother provided financial support for schools, particularly girls’ schools, in his district, and in discounting his public profile as a wealthy Hazara man with political views and connections hostile to the Taliban.  This part of ground 3 again seeks merit review.  In any event, the Tribunal did not disregard or find that the Applicant did not face any danger in that respect.  Rather it accepted that the Applicant had a well-founded fear of persecution based on his imputed political opinion of opposition to the Taliban in his local area.  However it found he could reasonably relocate to Kabul where he would not be at such risk. 

7. Ground 3 goes on to take issue with the Tribunal’s statement that there had been no attacks on schools in the Jaghori District, when an October 2011 article entitled “Unsafe Haven:  Hazards in Afghanistan and Pakistan” by Abdul Hikmat at the Cosmopolitan Civil Societies Research Centre, UTS (for which an online link was provided) was said to state otherwise.  However there is nothing in the material before the court to suggest that the Applicant put such evidence before the Tribunal.  The claim that he now makes is not indicative of jurisdictional error, given that the selection and weight of items of country information is a matter for the Tribunal.  I note that the Tribunal referred to more recent country information in its reasons for decision.  It is not apparent that there is an arguable case that the Tribunal fell into jurisdictional error in its findings on the evidence before it in relation to the situation in the Jaghori District. 

8. In ground 4 the Applicant claimed the Tribunal was in error when it stated that he could safely relocate to Kabul.  This ground seeks merits review in asserting that because the Applicant’s extended family came from Jaghori they could not support and protect him from the Taliban in Kabul, that the Taliban could find a person who had relocated to Kabul to escape persecution at their hands, and in contending that the Tribunal’s characterisation of the Applicant as low profile because he had a local profile did not mean that he was not in need of protection because of the presence of the Taliban in Kabul. 

9. The Applicant was given the opportunity today to address the basis on which he claimed the Tribunal had made a jurisdictional error.  He did not raise any matters which would suggest that he had any prospects of success in that respect.

10. Insofar as the Applicant appeared to express concern that in some way information about him had not been kept confidential, but had become known in Afghanistan, there is nothing in this contention that is in any way indicative of jurisdictional error in the decision or procedures of the Tribunal.

11. Nor, as the First Respondent submitted, is there anything in the material in the court book to suggest that the Tribunal’s decision is affected by jurisdictional error. The Tribunal confirmed its understanding of the Applicant’s claims. It considered and dealt with the integers of those claims. The Tribunal’s account of the hearing is not such as to raise any concern about its compliance with the obligation to raise determinative issues with the Applicant in accordance with s.425 of the Migration Act 1958 (Cth). The Tribunal decision turned substantially on its relocation finding. While relocation was not the basis for the delegate’s decision it was, according to the Tribunal, canvassed at the Tribunal hearing. Moreover the Applicant, through his adviser, was given and took the opportunity after the hearing to make a submission addressing this and other issues that arose at the hearing. The Tribunal’s consideration of relocation is not such as to be indicative of arguable jurisdictional error on the part of the Tribunal.

12. In all of the circumstances, the Applicant has not established that it is in the interests of justice that the Court exercise its power to set aside the notice of discontinuance.  The application in a case filed on 17 July 2013 should be dismissed.  Before I make the orders, I will hear submissions in relation to costs.

RECORDED:  NOT TRANSCRIBED

1. The unsuccessful Applicant should pay the costs of the First Respondent. The Applicant sought the opportunity to pay by instalments. As I indicated to him, that is a matter that he can raise with the Department or, indeed, with the Minister’s legal representatives.  In all the circumstances, having regard to the nature of this and other similar matters, an appropriate amount is the sum of $2,500.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  19 November 2013