SZTNW v Minister For Immigration and Anor (No.2) - [2014] FCCA 2214

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTNW v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2014] FCCA 2214

Catchwords:
MIGRATION – Application in a Case – original application dismissed for
non-appearance of the applicant – no satisfactory explanation for the applicant’s failure to attend previous Court date – not in the interests of the administration of justice – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476

Federal Circuit Court Rules 2001 (Cth) rr.13.03C, 16.05

SZTNW v Minister for Immigration & Anor [2014] FCCA 588
SZSNJ v Minister for Immigration & Anor (No.2) [2013] FCCA 260
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1

Applicant:

SZTNW

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2890 of 2013

Judgment of:

Judge Nicholls

Hearing date:

9 May 2014

Date of Last Submission:

9 May 2014

Delivered at:

Sydney

Delivered on:

26 September 2014

REPRESENTATION

Applicant:

In Person

Counsel for the Respondents:

Mr L Dennis

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Application in a Case made on 24 April 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2890 of 2013

SZTNW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an Application in a Case made on 24 April 2014 which seeks that orders made by Judge Barnes of this Court on 19 March 2014 be set aside. I have proceeded on the basis that the applicant seeks an order pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) for this purpose.

Background

The material in the Court file reveals the following. On 21 November 2013 the applicant made an application to the Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal made on 21 October 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
The application was set down by the Court’s Registry for a first Court date on 5 March 2014 before Judge Barnes. The applicant did not appear on that date. Her Honour adjourned the matter to 19 March 2014.
The applicant again did not appear at the Court event on 19 March 2014. Her Honour dismissed the application pursuant to r.13.03C(1)(c) of the FCC Rules (see SZTNW v Minister for Immigration & Anor [2014] FCCA 588 (“SZTNW”)).

The Issue

The issue raised for consideration is whether the order should be set aside. I understood the Application in a Case to invite the Court to proceed pursuant to r.16.05(2)(a) of the FCC Rules.
In SZSNJ v Minister for Immigration & Anor (No.2) [2013] FCCA 260 at [23] – [25], I relevantly said the following:
“[23] The exercise of the discretion as expressed in r.16.05(2)(a) of the Rules has a number of elements which can be derived from a number of judgments (see for example SZIDH v Minister for Immigration & Citizenship [2007] FCA 369, Capital Webworks Pty Ltd v Adultshop.Com.Limited & Ors [2002] FCA 389 for the corresponding order in the Federal Court Rules 2011 (Cth), Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543; (1997) 148 ALR 578; 47 ALD 1, Smith v NSW Bar Association [1992] HCA 36 (1992) 176 CLR 256 – ‘there is some matter calling for review’ (at [27]); Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 111 ALR 385 – ‘the interests of justice so require’ at per Gaudron J at [1] and [18]).
[24] I note, and respectfully agree with, what was said in NAJN v Minister for Immigration [2003] FMCA 414 at [7] per Judge Barnes:
‘This is not a case where both parties consent to the setting aside of the orders. The respondent opposes such a procedure. The court has a discretion under Rule 16.05(2)(a) to set aside a judgment. Such discretion must be exercised with caution having regard to the importance which the public interest has in the finality of litigation recognising the tension between the public interest in the expeditious conduct of litigation and the obligation of the court to ensure litigants have the opportunity to present a case where there is a real dispute. The power is generally not to be exercised unless the applicant can show that by accident and without fault on his part the order was made without his being heard. It is necessary to look at the whole of the circumstances. (Australian Fisheries Management Authority v P.W. Adams Pty Limited No.2 (1996)

66 FCR 349).’
[25] In light of this, the elements for consideration in the present case are whether the applicant has presented a satisfactory explanation for his lack of appearance and whether there is an arguable case in the application calling for review, or the interests of justice require that the applicant should be given the opportunity to present his case where a real dispute exists. That is, whether there exist material arguments that might reasonably lead to a different order to the one already made by the Court. (In this latter regard see Clifford v Mountford [2006] FMCAfam 450 per Judge Jarrett at [34]).”

Before the Court

At the hearing of the Application in a Case, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language.

Mr L Dennis appeared for the Minister.
In support of his current application the applicant has filed an affidavit made on 11 April 2014. Relevantly, the applicant states (at [5]):
“On 5 March 2014,I received a call from Federal Circuit Court to ask me to attend its hearing, I forgot the date and was told to get a letter from the Court of noticing me the new hearing date. I was a waiting. I didn’t get it until 4 March 2013.I called the Court which said they had sent a letter to notice me the date, but I didn’t get it. They asked me to contact the minister lawyer to get the order who told me the Court had dismissed my appeal. I felt great sad because I lost the important chance of attending the hearing and lost the limited time of lodging application.. I made a great error. I implore your Court will accept my appeal.”
[Errors in the original.]

Consideration

As follows below, there are two reasons for refusing the applicant’s Application in a Case. First, the applicant has not provided a satisfactory or adequate explanation for his failure to attend on either occasion of the two earlier Court events. Second, there is no merit in the grounds of the substantive application such as to argue for the setting aside of her Honour’s orders and allowing the substantive application to proceed. Further, on what is before the Court, and also in light of what the applicant said before me, I cannot see that the substantive application has any reasonable prospects of success or that any real dispute exists. This would leave the granting of the Application in a Case as an exercise in futility.
In relation to the first reason, the applicant has provided no satisfactory explanation for his failure to attend Court on 5 March 2014. Her Honour was satisfied that the notice on the relevant application form was such to alert the applicant to the Court event. The applicant has provided nothing to the Court now to disturb that view. The applicant’s explanation, such as it is, that he “forgot” the Court date is inconsistent with the apparent gravity of the applicant’s claim that the Tribunal was in error in finding against him in a matter where he claimed to fear for his life and wellbeing.
As for the second Court event, the applicant’s explanation in his affidavit is that he received a telephone call “from Federal Circuit Court” asking him to attend what he described as the “hearing”.
The applicant’s subsequent explanation that he did not receive notice of the “new hearing date”, I understand as meaning that he did not receive a letter from the Court notifying him of the date of the new Court event.
Her Honour’s judgment at [3] provides the answer to the applicant. In effect, both the Minister’s solicitors, and the Court, wrote to the applicant at the address for service notifying him of the second Court date. The applicant’s mere assertion that he did not receive those letters, in the circumstances, is not a satisfactory explanation.
I should note I had some difficulty in “formally” reading the applicant’s affidavit of 11 April 2014 into evidence before the Court. As demonstrated before the Court the applicant did not speak, nor for that matter, read or write English. The affidavit, however, contains no reference to having been made with the assistance of any interpreter in the appropriate language.
Given this uncertainty as to the making of the affidavit, and indeed its provenance, I gave the applicant the opportunity to give his evidence orally to the Court with the assistance of an interpreter in the Mandarin language. References in this judgment to what is in the affidavit therefore should be taken as being in the nature of submissions by the applicant.
The applicant’s oral evidence before the Court did not advance his case. The applicant stated that his failure to attend Court, primarily, was because he was “waiting” for the letter (presumably to notify him of the Court events). His evidence was not clear as to whether this was in relation to the first Court date (5 March 2014) before her Honour, or the second date to which the matter had been adjourned to give the applicant another opportunity to attend (19 March 2014).
The notification of the first Court date appears on the face of the application made by the applicant on 21 November 2013. That date, as notified by the Court’s Registry, was 5 March 2014. I can take judicial note that it is not the practice of the Court’s Registry to also write to applicants separately by letter to advise of a first Court date where that notification has been provided on the copy of the application to the Court.
In any event, whatever the situation in relation to the practice of the Court’s Registry, the respondent’s “Exhibit 1” before Judge Barnes reveals that the respondent wrote to the applicant on 3 December 2013 in relation to his application (see SZTNW at [3]). This was referred to in the letter when the respondent again wrote to the applicant on 5 March 2014 informing him of the adjournment of the Court date and of the new date for his matter. That letter was sent to the address for service as it appears on the original application filed by the applicant (a street address in Campsie, NSW).
Before the Court, the applicant gave evidence with the assistance of an interpreter in the Mandarin language that he was waiting for a letter which he expected would be sent to a post office box address to which it appears he had access.
The original application to the Court does not contain any reference to a post office box address either as the address for service or otherwise. It lists only the Campsie street address as the address for service. The applicant was unable to satisfactorily or adequately explain why he would be waiting for correspondence in relation to his Court event to be sent to a post office box address which he had not provided to the Court, or to the Minister.
His explanation appeared to be that a “friend” completed the original application form for him and the friend “forgot” to “put it down”. He gave evidence that this “friend” was a person with whom he lived. It appears that this was a reference to the Campsie street address. He only knew him as “Chen”. The applicant said he was always referred to simply as “Chen”.
The applicant also gave evidence that he had moved from the Campsie street address. The exact time was unclear. However, he explained that it was some time after he made his original application. Further, and with reference to the Minister’s letter to him of 3 December 2013, he stated he thought (“I think so”) he continued to live at the Campsie address in December 2013, although it was unclear until what date. Nor was it clear as to where he had moved. At best, it appeared at this part of his evidence that wherever he did move, he did not continue to live with “Chen”.
He gave clear evidence that he did not notify the Court of any change of address.
The applicant also gave evidence that he did not “look at” (I understood this in the sense of “having regard to”) what was written by the Court’s Registry on the face of the application form. Rather, he emphasised that he just “looked” into the post office box. No further details were given about this post office box.
The applicant also stated that a “friend” (it was not clear if this was “Chen”) told him that the letter had arrived for him and he then forgot about it. The applicant was not clear as to when this occurred, or whether it referred to either of the two letters sent by the Minister.
It is the case that this Court often extends some “leeway” to unrepresented applicants in migration matters involving those who have been unsuccessful in their application for a protection visa. This is particularly so in matters of completing Court forms to make their application for review and the like. Those who come from a

non-English speaking background and have only had a short time in Australia may have additional difficulties in accessing the Court and presenting their application in comparison to others generally in the community.
However, this “leeway” does have its limits. Here the applicant, on his own evidence, had access to, and the assistance of, a “friend” who demonstrably was conversant in English, and had some familiarity with Court forms. Further, the applicant continues to have access to some relevant assistance as is revealed in the making of his Application in a Case, and his affidavit of 11 April 2014 filed in support.
Further, applicants must accept some responsibility for the presentation of their case. A lack of English does not necessarily mean that an applicant from a non-English speaking background should not take the reasonable steps available to him or her to at least understand the rudimentary aspects of the process they have initiated. In this case, the applicant did have the opportunity in this regard.
What also must be weighed here is the state of the applicant’s actual evidence, both oral and written, before the Court. That evidence was, on critical points, either confused, or otherwise unsatisfactory, in providing an explanation as to why he did not attend before Judge Barnes.
In all, I agree with the Minister that the applicant’s “explanation” was not satisfactory or adequate such as to sufficiently weigh in favour of reinstating his original application.
The second reason weighing against the granting of the order in the applicant’s favour is the lack of merit in the substantive application. The Tribunal’s decision is before the Court as an attachment to an affidavit made by the applicant on 19 November 2013 and filed with his application to the Court on 21 November 2013. From that record the following may be discerned.
The applicant applied for a protection visa on 17 July 2012. He was the sole applicant. His wife and child remained in China. The delegate refused the application on 18 October 2012. The applicant applied for review to the Tribunal on 18 November 2012. He appeared at a hearing before the Tribunal on 18 October 2013.
The applicant’s claims were summarised by the Tribunal as follows ([8] of the Tribunal’s decision record):
“The applicant claims, essentially, that his wife wanted to give birth to the second child and, as a result, was forced to

undergo abortion. He claims that he went into hiding to avoid forced sterilisation and then left China to avoid forced sterilisation/litigation. He claims that the family planning officials had been looking for him and think he had escaped home.”
The Tribunal noted a number of concerns with the applicant’s evidence. These included inconsistencies in the presentation of the factual matrix of his claims and concerns about the provision of false information, which the Tribunal said brought into question his overall credibility.
Further, the Tribunal found his evidence as to his wife’s pregnancy, attendance at a medical examination, and claimed abortion to be, variously, implausible, inconsistent, and in a number of key aspects, contradictory.
In relation to the claim that he faced sterilisation or ligation as a result of the events concerning his wife, the Tribunal found that the applicant had provided “such a vague description of events devoid of any detail” that suggested that he had not experienced such events (see [8] and item (g) at [10] of the Tribunal’s decision record).
The Tribunal expressed concerns regarding the applicant’s claimed timing of relevant events and, when viewed in the context of his application for a student visa which he used to travel to and enter into Australia, it found that the relevant timing was suggestive that the reason he came to Australia was not to avoid family planning officials (see item (j) at [10] of the Tribunal’s decision record). Further, the Tribunal found his explanations as to why he came to Australia made “little sense” (see item (j) at [10] of the Tribunal’s decision record). It found his evidence and explanations were supportive of the view that the reason he came to Australia was employment, rather than avoiding family planning officials.
Finally, the Tribunal noted that his explanation that he did not attend the interview with the delegate because he was working was inconsistent with his claimed fear of harm, given the importance of attending the interview if he felt threatened (see item (l) at [10] of the Tribunal’s decision record).
The Tribunal concluded that the applicant had not been a truthful witness in his claims and that he had “fabricated the entirety of his evidence” ([11] of the Tribunal’s decision record). It rejected the entirety of his claims. The Tribunal therefore found that the applicant did not meet either of the criteria at s.36(2) for the grant of the protection visa.
The grounds of the substantive application to the Court are in the following terms:
“1. My local family planning officers took my wife to our local hospital for examination and found pregnancy and forced my wife to have an abortion.
2. I learnt that the family planning officers would forcibly take me to the hospital for a sterilization. All my family opposed it and I had to leave China for Australia with a student visa.
3. The Refugee Review Tribunal member didn’t believe in our experience in China and refused our application for reviewing of the decision of the Immigration Departmnet. I think the decision in unfair.”
[Errors in the original.]
The grounds make four sets of assertions. First, they repeat some factual claims made to the Tribunal. At best, this seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Second, the grounds take issue with the Tribunal’s finding as to his reason for coming to Australia. On what it said was before it, that finding, for which the Tribunal gave reasons, was reasonably open to it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The applicant therefore again seeks impermissible merits review.
I did consider whether the Tribunal’s reference to the timing and circumstances of the making of the application for a student visa which the applicant used to come to Australia, revealed any breach of its obligation under s.424A(1) of the Act (see second paragraph of item (j) at [10] of the Tribunal’s decision record). If it could be said this was information that the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision then such “information” would be caught by s.424A(1) of the Act and would not fall within any of the exceptions in s.424A(3) of the Act.

There are a number reasons available to say that this would not assist the applicant. One, the reference to that application contains no reference as to what may have been the contents of that application. The information the Tribunal relied on was the timing of the making of that application. This is not, of itself, material that contains in its terms “a rejection, denial or undermining” of the applicant’s claims to be protection (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17]).
Two, and in any event, the Tribunal discussed this matter with the applicant at the hearing. However, even if this matter were to be said to be “information” for the purposes of s.424A of the Act, it would therefore be said any such “information” was caught by the exception at s.424A(3)(b) of the Act (see the third paragraph of item j at [10] of the Tribunal’s decision record).
Third, the applicant’s grounds seek to cavil with the Tribunal’s adverse credibility finding. Again such findings, being findings of fact, are for the Tribunal to make. Without more, the findings are within jurisdiction.
Fourth, in the application the applicant says the decision was “unfair”. Before the Court today I gave the applicant the opportunity to explain, in his own words, his grievance with the Tribunal’s decision. I was concerned that, as an unrepresented applicant without relevant legal knowledge, he may not be able to identify any legal error on the part of the Tribunal if such error was otherwise available for identification.
The applicant made no claim that the Tribunal failed to consider any aspect of his claims, or that he was not given an opportunity to explain his claims, or that there were, for example, interpretation difficulties at the hearing with the Tribunal. His concern was with the Tribunal’s adverse view of his credibility and its rejection of his claims. This is what he said was “unfair”.
In all therefore, again, the applicant seeks merits impermissible review rather than seeking to press some unfairness in the procedure adopted by the Tribunal. The Tribunal is required to provide fairness in the procedures it employs in the conduct of the review. However, it is not obliged to make what the applicant may consider a “fair” or “right” decision (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).
Further, in the context of procedural fairness, if the applicant was referring to the Tribunal’s reference to his student visa, then as stated above, any “information” in relation to the student visa application was caught by 424A(3)(b) of the Act (see above at [43] – [45]).

Conclusion

The grounds of the application do not raise an arguable case for the relief sought. Nor do they suggest any matter that could lead to jurisdictional error being revealed in the Tribunal’s decision. There is nothing in the material before the Court, or in what the applicant said to the Court to argue for the setting aside of the orders made by Judge Barnes. The Application in a Case should therefore be dismissed. I will make an order accordingly.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 26 September 2014