SZTOJ v Minister For Immigration and Anor (No.3)

[2014] FCCA 2428

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTOJ v MINISTER FOR IMMIGRATION & ANOR (No.3) [2014] FCCA 2428

Catchwords:
MIGRATION – Application to set aside decision dismissing application for reinstatement of application for review of Refugee Review Tribunal decision.

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

Federal Circuit Court Rules, rr.13.03C, 16.05

MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

SZTOJ v Minister for Immigration & Anor [2014] FCCA 2207
SZTOJ v Minister for Immigration & Anor (No.2) [2014] FCCA 2331

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: 15 October 2014

Delivered at: Sydney

Delivered on: 15 October 2014

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application in a Case filed on 7 October 2014 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $600.

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. This matter initially came before the Court as an application seeking review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. The matter was listed for hearing on 12 September 2014. However there was no appearance by the Applicant on that day. His application was dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules (see SZTOJ v Minister for Immigration & Anor [2014] FCCA 2207).

2. On 19 September 2014 the Applicant filed an application in a case seeking that his matter, in effect, be reinstated under r.16.05 of the Federal Circuit Court Rules. That application in a case was listed for hearing on 3 October 2014. Again, the Applicant was not present at the time the matter was listed for hearing. I dealt with the application in a case pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules (see SZTOJ v Minister for Immigration & Anor (No.2) [2014] FCCA 2331). I had regard to the explanation for the Applicant’s failure to appear on 12 September 2014 (albeit he was not present on 3 October 2014 to be cross-examined), the absence of any significant prejudice to the Minister but also to the fact that the decision whether to reinstate depended not only on the existence of a reasonable explanation for the failure to appear, but also on whether the proceedings had a reasonable chance of success if reinstated. If not, there would be no purpose in reinstatement (see MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 and MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530).

3. In those circumstances I took the Applicant’s reason for non-appearance on 12 September 2014 (a delayed train) at its highest (as plausible) but was not satisfied that the Applicant had a reasonably arguable prospect of success in relation to any of the grounds in his substantive application.  His application in a case was dismissed.  

4. On 7 October 2014 the Applicant filed a further Application in a Case seeking to reinstate his case.  It is this application that is before the Court today.  He claimed that he was unable to attend the hearing on 3 October 2014 because of sickness.  He provided a medical certificate dated 3 October 2014.  Somewhat unhelpfully, it certified that the Applicant was receiving medical treatment for the period 2 October 2014 to 3 October 2014 inclusive and that “he will be unfit to continue his usual occupation”.  

5. In cross-examination, when asked what his occupation was, the Applicant indicated that he was unemployed.  He also said that he called the Registry at about 10.20 am on the day of the hearing.  There is no record of this before the Court.  He did not attempt to telephone the Minister’s solicitor. 

6. I have some concern about the adequacy of the Applicant’s explanation for his non-appearance on 30 October 2014, the last occasion the matter was before the Court in that the medical certificate is incomplete.  It does not explain how unfitness to continue a usual occupation (for an unemployed person) amounts to unfitness to attend and participate in a hearing.  However I am prepared, for present purposes, to accept that the Applicant was in some way unwell, such that he was able to obtain a medical certificate on the day of the hearing.  Were there any merit in the substantive application, it may have been appropriate to reinstate the application in a case dismissed on 3 October 2014, despite the shortcomings in the medical certificate.

7. However the difficulty that faces the Applicant is that, as I considered in detail in SZTOJ (No.2) and for the same reasons that I gave, I am not satisfied that he has a reasonably arguable prospect of success in relation to the grounds for review of the Tribunal decision as pleaded.  I gave the Applicant the opportunity today to elaborate on those grounds and to raise any other matters about the Tribunal decision or procedures.  I have considered all that he said both in relation to the grounds and also more generally.  However I am not persuaded that anything that he said is such as to indicate that he has even a reasonably arguable prospect of success in relation to any aspect of the application for review of the Tribunal decision.

8. The Applicant stated that at the Tribunal hearing he told the Tribunal his claims and did his best to explain them, but that the Tribunal did not accept it.  He reiterated his concern that the Tribunal did not accept his claims during his submissions.  However credibility is a matter for the Tribunal and the issue that the Applicant takes with the Tribunal conclusions seeks impermissible merits review.  Nothing in what he said in this respect is indicative of even an arguable jurisdictional error.  The Tribunal’s findings were open to it on the material before it for the reasons it gave (see SZTOJ v Minister for Immigration & Anor (No. 2) [2014] FCCA 2331 at [14] – [24], [28] and [36]).

9. The Applicant also expressed a concern that misleading information in relation to currency conversion of an amount he claimed he had borrowed in Bangladesh (relevant to his claims to fear persecution) had led the Tribunal not to accept his claims.  He referred to paragraph 10 of the Tribunal decision.  It is apparent that he was concerned about the fact that the Tribunal had found that he was unable to state the amount of the claimed loan in circumstances where he told the Tribunal it was “somewhere between 12 and 15 lakhs”.

10. There is no transcript of the Tribunal hearing in evidence.  Directions made in March 2014 gave the Applicant an opportunity to provide a transcript of the hearing had he wished to do so.  He did not do so.  There is nothing to indicate that the Tribunal’s account of what was said in the hearing is incorrect.  Nor is there anything in the material before the Court (in particular the Tribunal reasons) to indicate an arguable jurisdictional error arising out of the concern the Applicant now raises and the explanation he gives for currency differences, whether based on unreasonableness, a failure to consider an integer of the Applicant’s claims or actual or apprehended bias.  As I endeavoured to explain to the Applicant, this Court cannot decide whether or not he is a refugee.  Insofar as he sought to raise fresh claims to refugee status that does not establish jurisdictional error on the part of the Tribunal.

11. The Applicant also made a complaint about the cancellation of his Bridging visa E while his judicial review application was on foot. Such a complaint does not demonstrate even an arguable jurisdictional error on the part of the Tribunal. It relates to a completely separate decision of the Department which is not the subject of these proceedings.

12. Ground one is that the Tribunal failed to take into consideration his oral evidence regarding his persecution in relation to his failure to make a loan payment.  When asked to address ground one in his application the Applicant claimed that he had not been able to repay the loan he had obtained from a lender in Bangladesh.  He took issue with the fact that the Tribunal did not accept what he had said about the existence of the loan or subsequent threats.  As indicated, such a claim seeks impermissible merits review.  There is nothing in what the Applicant said today that demonstrates or raises a concern that the Tribunal failed to take into account an aspect of his evidence or an integer of the Applicant’s claims in a manner constituting jurisdictional error.

13. Ground two is that the Tribunal failed to enable the Applicant to have an opportunity to “submit my explanations regarding my fear for life”.  When asked what he meant by this, the Applicant said if the Tribunal had accepted what he said, there would have been a different decision.  That may be so, but it does not demonstrate or even go to suggest that the Tribunal failed to give the Applicant the opportunity to “submit [his] explanations”. The Applicant was invited to and attended at a Tribunal hearing. In its reasons the Tribunal referred in some detail to what occurred in the Tribunal hearing (although it does not purport to give a full account of what occurred). There is nothing in that account or elsewhere in the Tribunal decision to suggest that the Tribunal failed to give the Applicant the necessary opportunity to give evidence and make submissions in relation to the matters under review, as required by s.425 of the Migration Act 1958 (Cth).

14. Nor is there anything in the material before the Court to indicate that the Applicant sought and was not given an opportunity to provide further explanations or material to the Tribunal.  I note in that respect that the Applicant wrote to the Tribunal after the hearing, reiterating and elaborating on his claims.  The Tribunal decision was not made until after receipt of that letter.  Nothing in what the Applicant said today indicates any substance in ground two. 

15. Ground three is a general complaint of a denial of natural justice based on bias or an apprehension of bias.  The Applicant had nothing more to say in relation to that ground.  Nonetheless, as the Applicant is self-represented, I have considered all of the issues that he raised at other points in his submissions.  His concerns with the merits of the Tribunal decision, its fact-finding process and adverse credibility finding are not such as to be demonstrative of even an arguable case of either actual or apprehended bias (see SZTOJ (No.2) at [36]). 

16. Finally, when asked if he had any other issues with the Tribunal decision or procedures, the Applicant claimed that at the Tribunal hearing he had been asked if he could go home and pay the debt.  He claimed he gave an explanation about his failure to have paid the loan repayments for a couple of years and claimed that the lender would not accept payment easily.  He also spoke about the cost of living in Bangladesh.  He also claimed that while the Tribunal asked him why he feared the lender, it did not accept his explanation in that respect.  The concerns that the Applicant raised in this respect are not the subject of evidence.  There is no transcript of what occurred at the Tribunal hearing.  In any event, such concerns take issue with the merits of the Tribunal decision, in particular the Tribunal’s credibility finding and its failure to accept the claim that the Applicant entered a loan contract or that he had been threatened as a result of that contract.  As indicated, the Tribunal gave reasons for those findings that were open to it on the material before it for the reasons which it gave.  There is nothing in what the Applicant said today that establishes any basis for an arguable jurisdictional error.  The issues that he takes in relation to fact-finding and the Tribunal’s credibility finding do not identify any flaws in the Tribunal processes, in its reasoning or in what occurred at the hearing such as to give rise to a jurisdictional error. 

17. In these circumstances, while ill health may be an acceptable explanation for a failure to appear at a hearing and there would be no significant prejudice to the First Respondent were the matter to be reinstated, I am not satisfied that the application, if reinstated, would have a reasonably arguable prospect of success on any of the bases contended for in the application for review or as explained in submissions today.  Hence, even if the Applicant’s illness provided a reasonable excuse for his absence from the hearing on the last occasion (and indeed, even if the claimed delayed train provided a reasonable excuse for his absence from the hearing of the substantive application insofar as it is necessary for me to go back that far in the current proceedings), there would be no purpose in reinstatement of the proceedings as there is no reasonably arguable prospect of establishing a jurisdictional error on the part of the Tribunal.  In all the circumstances I am satisfied that it is appropriate to dismiss the Application in a Case filed on 7 October 2014 with costs.  Before I make the orders I will hear submissions in relation to costs. 

18. The Applicant has been unsuccessful. The Minister seeks that the Applicant pay his costs fixed in the sum of $600, that amount being the costs sought in relation to the present application in a case. The Applicant claimed that he was in financial hardship and drew my attention to the form that he had completed in that respect. However there is nothing in the circumstances of the present case to warrant a departure from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent. The Applicant’s lack of funds is not a reason for departing from that principle, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is reasonable and appropriate in light of the nature of this and other matters.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  22 October 2014