SZTOJ v Minister For Immigration and Anor (No.2)

[2014] FCCA 2331

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTOJ v MINISTER FOR IMMIGRATION & ANOR (No.2) [2014] FCCA 2331

Catchwords:
MIGRATION – Application to set aside orders dismissing application for review of a decision of the Refugee Review Tribunal pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules – where Applicant again failed to appear – hearing of application in a case proceeded under r.13.03C(1)(e) and application in a case dismissed.

Legislation:
Migration Act 1958 (Cth), s.425

Federal Circuit Court Rules, rr.13.03C, 16.05

Cases:
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Applicant: SZTOJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2915 of 2013

Judgment of: Judge Barnes

Hearing date: 3 October 2014

Delivered at: Sydney

Delivered on: 3 October 2014

REPRESENTATION

Applicant: No appearance

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application in a Case filed on 19 September 2014 is dismissed.

2. The Applicant pay the costs of the First Respondent in relation to the Application in a Case fixed in the sum of $1,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2915 of 2013

SZTOJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 12 September 2014 I made orders in the absence of the Applicant dismissing his application for review of a decision of the Refugee Review Tribunal. 

2. On that occasion the Applicant was not present at the time that his substantive application for review of a decision of the Tribunal was listed for hearing. Nor was he present some 20 minutes later. I dismissed his application under r.13.03C(1)(c) of the Federal Circuit Court Rules (see SZTOJ v Minister for Immigration & Anor [2014] FCCA 2207).

3. However on 19 September 2014 the Applicant filed an Application in a Case seeking that his case be “re-open[ed]”. I take this to be an application invoking the power of the Court under r.16.05 of the Rules to set aside a judgment or order. In the application the Applicant claimed that he was “unable to attend the hearing date due to the delay train service”.  In an accompanying affidavit he acknowledged that the hearing was listed on 12 September 2014 but provided no further explanation for his non-appearance.  I am told from the bar table that the Respondents’ solicitor was contacted by telephone on the day of the last hearing and informed that the Applicant was late because of a delay in the train service.

4. The Application in a Case was listed for hearing today at 10.15 am.  There was no appearance by the Applicant at the hearing of his own Application in a Case.  The date, time and place of the hearing were stated on the Application in a Case he filed.  There is no evidence of any contact by the Applicant with the Court or the Respondents’ solicitors.  It is now nearly 25 minutes after the time at which the matter was listed.

5. In these circumstances having regard to r.13.03C(1)(e) of the Rules, I consider it appropriate to proceed with the hearing of the application presently before the Court, that is, the Application in a Case. Insofar as the application is an interlocutory application I note r.13.03C(1)(d) of the Rules.

6. I have not had the benefit of any submissions from the Applicant, either in relation to his substantive application or the present application.  The First Respondent relied on written submissions filed in relation to the substantive proceedings and Counsel made short oral submissions.

7. In circumstances where a proceeding has been dismissed in a party’s absence and reinstatement is sought, the Court has a discretion under r.16.05 of the Rules. It is relevant to take into account whether there is a reasonable excuse for the party’s absence from the hearing, any prejudice that might flow to the other party from the reinstatement and whether the Applicant has a reasonably arguable prospect of success in relation to the substantive application (see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]). As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] (albeit in relation to reinstating an appeal):

   The decision whether to reinstate an appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement.

8. This principle was quoted with approval by Ryan J in MZYEZ at [7] – [8] in considering an application for leave to appeal in relation to a decision of a judge of this Court not to set aside (under r.16.05) an earlier dismissal of an application for judicial review under r.13.03C of the Rules.

9. Taking the Applicant’s excuse for non-appearance on 12 September 2014 at its highest for present purposes, it is plausible that he was delayed by a train being late.  Notwithstanding that he did not give any affidavit evidence in relation to that excuse and is not here today (when he could have had the opportunity to give oral evidence and could have been cross-examined), I am prepared to proceed on the basis that a delay caused by a late train might well be a reasonable excuse.  There is no suggestion of any significant prejudice to the First Respondent should the matter be reinstated. 

10. However in this case I am satisfied that there is no purpose in reinstatement because, for the reasons that follow, I am not satisfied on the material before me that the Applicant has a reasonably arguable prospect of success in relation to his substantive application. 

11. In order to consider the substantive application, it is necessary to have regard to the background to those proceedings, which, as indicated, involved an application for review of a decision of the Refugee Review Tribunal made on 21 October 2013 which affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

12. The Applicant, a citizen of Bangladesh, arrived in Australia in December 2009 as the holder of a student visa.  He applied for protection in July 2012.  He attended an interview with a delegate.  The delegate refused his application and he sought review by the Tribunal.  He provided a written submission to the Tribunal.  He was invited to and attended a Tribunal hearing. 

13. In essence, the Applicant claimed to fear persecution in his home country of Bangladesh on the basis that he feared a named powerful man whom he said had loaned money to him when he was 17 years old to enable him to study in Australia.  He provided a translation and copy of a document said to be the loan contract.

14. However, in its reasons for decision the Tribunal found that it was not satisfied that the Applicant had entered such a contract or that he had been threatened as a result of that contract as he claimed, for reasons which it gave.  The Tribunal set out in considerable detail the reasons it found the Applicant not to be a credible witness.  It found that the Applicant’s knowledge of the contract was significantly lacking.  In particular, it had regard to the fact that he did not know how much the loan was for, was unable to state what interest was payable or the amount of the repayments or the term of the loan. 

15. The Tribunal did not find it credible that a person would enter a loan contract with a professional lender without agreement about the amount, duration, repayments and interest.  It also found that the Applicant’s lack of knowledge was inconsistent with the terms of the document described as a loan contract (which did specify the amount of the loan, dates of repayments and the period of the loan). 

16. The Tribunal found the Applicant’s explanation for his lack of knowledge (based on claimed memory difficulties) to be unpersuasive.  It observed that this was a fresh claim made at the hearing and that there was no evidence to support such a claim.  The Tribunal also found that the financial documentation provided with the Applicant’s student visa application did not support his claims in relation to the source of funds for his study.  It considered the Applicant’s explanation in this respect was not persuasive.

17. In addition, at the Tribunal hearing the Applicant had acknowledged that he had not referred to any fears about the claimed lender in his application to have an earlier student visa cancellation revoked, the review of that decision before the Migration Review Tribunal or in his request for Ministerial intervention.  The Tribunal found that his failure to raise such a significant issue referring to threats against his life as a result of the loan undermined the credibility of his claims.  It did not accept his explanation that he thought he would get his visa back and hence that it was not necessary to raise such issues. 

18. The Tribunal had regard to the Applicant’s youth, in circumstances where he was under the age of majority in Bangladesh at the time of the claimed contract.  It did not accept that it was credible that a professional lender would enter a non-enforceable loan document with an underage person, especially when an adult member of the Applicant’s family was present and could have entered the contract instead.

19. The Tribunal also took into account some inconsistent evidence of the Applicant about his knowledge of Bangladeshi contract law.  The Tribunal was of the view that the Applicant was fabricating his evidence to respond to concerns of the delegate and the Tribunal.

20. The Tribunal found that the Applicant’s evidence that the lender had been threatening his family was unpersuasive and inconsistent with some of his claims and that his explanation for his evidence and the inconsistencies was unpersuasive.  The Tribunal did not accept that the Applicant’s mother had been receiving threats from the lender as a result of the loan contract as claimed.

21. In addition, the Tribunal was not persuaded by the Applicant’s evidence about the lender waiting some considerable period of time before making contact with him despite his failure to make any repayments.  It noted he had given inconsistent evidence in that respect.  It did not accept that a lender, having waited 17 months with no repayments being made, would then agree to wait a further indefinite amount of time with no evidence to suggest that the Applicant’s financial circumstances would change.

22. The Tribunal also found that the Applicant’s evidence in relation to his father’s businesses in Bangladesh and his financial circumstances (which it detailed) was inconsistent and unpersuasive.  It was not satisfied the Applicant had been truthful about his family’s financial circumstances.

23. The Tribunal considered the deed of contract.  It noted that it was inconsistent with the Applicant’s evidence about the contract in relation to matters such as when repayments were to be made.  The Tribunal found it surprising that the document specified interest to be paid in circumstances where the Applicant had said both he and the lender were Muslim and that it was against the laws of Islam to enter a contract requiring interest to be paid.  The Tribunal observed that independent information suggested that Islamic loan documentation used alternate methods to make a profit on loans.  In addition, the Tribunal found it surprising that the document stated that interest was to be paid, but did not say how much, given it was said to have been entered into with a professional lender and drawn up by a lawyer or notary.  Finally, the Tribunal recorded that, as discussed with the Applicant at the hearing, it found that available information indicated that forged or fraudulently obtained documents were ready available in Bangladesh.  This was said to raise doubts about the genuineness of the document.  In light of these concerns, the Tribunal concluded that it placed little weight on the alleged loan contract.  It did not consider that it overcame the significant concerns it had set out. 

24. In these circumstances, the Tribunal was not satisfied that the Applicant was a credible witness.  It found that he had not entered into any loan contract in Bangladesh.  It was not satisfied that he or his family had received threats as a result as claimed.  It followed that it was not satisfied that there was a real chance the Applicant would be persecuted if he returned to Bangladesh as a result of any financial dealings. 

25. The Tribunal also dealt with a written claim by the Applicant that he would be subject to discrimination as a member of a lower class.  It referred to the fact he did not raise such fears at the hearing until after the Tribunal raised the issue with him.

26. In light of its significant concerns about the Applicant’s credibility and the evidence about his family’s financial circumstances, the Tribunal was not satisfied that he was “lower in class” as claimed.  It described the Applicant’s circumstances in Bangladesh and had regard to his ability to travel to and study in Australia and to other aspects of his family’s circumstances.  It was not satisfied there was a real chance the Applicant would suffer harm as a result of his actual or perceived class or lack of education in Bangladesh or for any other reason.

27. Having found it was not satisfied that the Applicant was a person in respect of whom Australia owed protection obligations under the Refugees Convention, the Tribunal reached the same conclusion in relation to the complementary protection criterion.  In light of its findings that the Applicant did not enter a loan contract in Bangladesh, it found that it followed that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to Bangladesh, there was a real risk he would suffer significant harm as a result of entering a loan contract.

28. The Tribunal referred to its findings that the Applicant’s evidence about his and his family’s financial position was not credible and that there was no real chance that he would suffer harm as a result of his actual or perceived class or lack of education.  It found that the same conclusion followed in relation to the complementary protection criterion.  The Tribunal affirmed the delegate’s decision.

29. The Applicant sought review by application filed in this Court on 25 November 2013. The application contains three grounds. The Applicant has not made submissions about these grounds, either in connection with his substantive application or in relation to the present r.16.05 application.

30. The first ground is that the “Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration [the Applicant’s] oral evidence regarding my persecution in relation to my failure to make a loan repayment”.

31. In its reasons the Tribunal set out in some detail aspects of the Applicant’s evidence at the hearing.  It gave reasons for rejecting the Applicant’s claims, including about loan repayments.  There is nothing in the Tribunal reasons for decision to support any contention that the Tribunal failed to take into any account any integer of the Applicant’s claims or any aspect of his evidence in that respect.  In any event, there is no transcript of the Tribunal hearing in evidence to support any claim that the Tribunal fell into error in the manner contended for in ground one of the application.

32. Insofar as this ground takes issue with the Tribunal’s conclusions, it seeks impermissible merits review.  I am not satisfied that there is an arguable basis for this ground on the material before the court.

33. The second ground in the application is that the “Tribunal failed to enable [the Applicant] to have an opportunity to submit [his] explanations regarding [his] fear for life”.  He claimed that if he had been “given the opportunity it could have led to a different decision by the Tribunal”.

34. There is simply no basis on the evidence for such a claim. The Tribunal held a hearing. The Applicant attended the hearing. It is apparent from the Tribunal reasons that the Applicant addressed his claimed fears. There is no evidence to support any claim that the Tribunal failed to raise dispositive issues with the Applicant or to suggest that he did not have a meaningful opportunity to avail himself of the opportunity to give evidence and address issues arising in relation to the decision under review as required under s.425 of the Migration Act 1958 (Cth). There is no substance in this claim on the material before the Court. I am not satisfied that the Applicant has any prospect, let alone a reasonably arguable prospect of success in relation to this ground.

35. The third ground is that the “Tribunal denied the natural justice in determining [the Applicant’s] review application”, or that it was biased or that there was an apprehension of bias in the making of the purported decision.

36. There are no particulars to this ground.  The Applicant has not filed the transcript of the Tribunal hearing.  It is a rare and exceptional case in which actual or apprehended bias (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28) will be established on the basis of the Tribunal decision alone (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 per Doussa J at [38], SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [44], Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [18] per North and Lander JJ). The Tribunal reasons for decision appear to indicate that it carefully considered the Applicant’s claims. It made adverse credibility findings for reasons that were open to it on the material before it. I am not satisfied that there is even an arguable prospect of success in relation to this ground as pleaded.

37. In these circumstances, I am not satisfied that the Applicant has a reasonably arguable prospect of success on any of the bases contended for in his application for review.  Even if a delayed train provided a reasonable excuse for his absence from the hearing of his substantive application, there would be no purpose in reinstatement of the proceedings. In these circumstances I am satisfied that it is appropriate to dismiss the Application in a Case filed on 19 September 2014 with costs.  I will hear submissions in relation to the amount of costs.

RECORDED  :  NOT TRANSCRIBED

1. I am satisfied in the circumstances of this case that the amount sought is reasonable and appropriate.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  10 October 2014