SZTWK v Minister for Immigration

[2016] FCCA 2277

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWK v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2277

Catchwords:
PRACTICE & PROCEDURE – Application to reinstate proceedings summarily dismissed for non-attendance – relevant considerations.

Legislation:

Migration Act 1958, ss.36, 474

Federal Circuit Court Rules 2001, rr.13.03C, 16.05

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTWK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 326 of 2014

Judgment of: Judge Cameron

Hearing date: 10 August 2016

Date of Last Submission: 10 August 2016

Delivered at: Sydney

Delivered on: 10 August 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B. Griffin of Australian Government Solicitor

ORDERS

1. The applicant’s application in a case filed on 24 May 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to that application in a case fixed in the amount of $900.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 326 of 2014

SZTWK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant commenced proceedings in this Court by an application filed on 13 February 2014 in which he sought judicial review of a decision made by the Refugee Review Tribunal (“Tribunal”), a tribunal which in the intervening period was replaced by the second respondent.  The Tribunal had affirmed a decision made by a delegate of the first respondent (“Minister”) to refuse the applicant a protection visa. 

2. The applicant’s application was listed for its first court date on 10 March 2014.  The applicant appeared in court on that day, at which time the matter was listed for callover on 26 June 2014.  The applicant also appeared at the callover when the matter was listed for hearing on 31 August 2015.

3. On 19 May 2015 the Court wrote to the applicant and advised him that his hearing date had been changed to 30 July 2015. There was no appearance by the applicant on that occasion and on the application of the Minister the proceedings were dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”).

4. These reasons concern an application in a case filed by the applicant pursuant to r.16.05 of the Rules seeking to set aside the orders made by this Court on 30 July 2015 on the basis that those orders were made in his absence.

5. In deciding whether to grant the current application, consideration must be given to whether the applicant’s explanation for his non-attendance on 30 July 2015 is a satisfactory one and whether, nevertheless, his application for judicial review would have reasonable prospects of success were it to proceed further. 

SATISFACTORY EXPLANATION

1. Turning first to whether the applicant has provided a satisfactory explanation for his non-attendance, in his supporting affidavit the applicant deposed that he suffered from depression and that this had caused him to forget his hearing date.  He deposed that his depression had made it difficult for him to manage from day to day.  The applicant was not cross-examined on his evidence and I am willing to accept that he forgot the 30 July 2015 hearing date.

2. At the hearing of this application, from the bar table the applicant repeated his contention that he had been depressed at the relevant time, saying that he had been taken to hospital and admitted through the accident and emergency department of “Kings Cross Hospital”, which I take to be a reference to St Vincent’s Hospital at Darlinghurst.  He said that he had been an inpatient for a couple of days.  The depression which the applicant claimed to have suffered was not substantiated by medical evidence or otherwise than in an incidental way in that he made reference to having been admitted to hospital. 

3. In many respects the material provided by the applicant in support of his contention to have a satisfactory explanation for his non-attendance on 30 July 2015 is deficient.  But, as I have noted, he was not cross-examined, and I am prepared to accept his unsworn factual assertions as accurate. 

4. In the circumstances I find the applicant’s explanation for his non-attendance to be satisfactory. 

REASONABLE PROSPECTS OF SUCCESS

1. As noted earlier, an application to reinstate a proceeding in the present circumstance would not be granted unless the applicant had demonstrated reasonable prospects of success on the principal application.  In the absence of such prospects, the substantive application would be liable to be dismissed.  

2. It should be noted in this regard that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying its decision. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error, as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, an applicant in the present circumstances must demonstrate reasonable prospects of proving that the Tribunal’s decision is affected by jurisdictional error. I am not satisfied that the applicant has done so.

Background facts

1. The applicant is a citizen of Nepal who arrived in Australia on 26 December 2008.  On 12 June 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Nepal because of his political opinion.  On 31 October 2012 the applicant’s application was refused by a delegate of the Minister.  The applicant then applied to the Tribunal for a review of that departmental decision but was unsuccessful.  On 13 February 2014 he applied to this Court for judicial review of the Tribunal’s decision.

2. The facts alleged in support of the applicant’s claim for a protection visa were set out in the Tribunal’s decision, which I will relevantly summarise.

3. The applicant made the following claims in his protection visa application and in a statement attached to that application:

   a)his father had owned a lot of land in Nepal and was forced to give money to the Maoists for protection;

   b)his brother was the chairman of the Nepali Congress Party (“NCP”) in his home district and he had assisted his brother in political activities.  When his brother became the NCP candidate in their home district elections he was threatened and harassed by the Maoists who demanded that he abandon politics;

   c)he joined the NCP and became politically active in his village by distributing leaflets, recruiting new members and holding a rally.  In July 2008 he attended a demonstration against the Maoists and was arrested, beaten, forced to sign a document promising that he would “not do politics” and told to leave the NCP for the Maoists.  He became frightened, insecure and mentally disturbed by the threats from the Maoists;

   d)as he had been identified as a strong opponent of the Maoists and had been threatened by them, he had feared that he would be harmed or killed so he fled to Kathmandu.  He found an agent who arranged a student dependent visa for him using a false marriage certificate;

   e)his mother, who had been an NCP member, was killed by the Maoists on 24 April 2012.  The local authorities did not investigate her death because of Maoist threats, declaring her death accidental;

   f)hard-core NCP members were harassed, kidnapped, tortured, assaulted and killed in Nepal.  Maoist militia attacks also continued unabated in remote areas such as his home village; and

   g)if he returned to Nepal he would be unable to express his political opinion for fear of being harmed or killed by the Maoists.  The authorities and the NCP would be unable to protect him.

4. In support of his application the applicant provided two letters dated 18 January 2011, which were purportedly signed by the acting president and the chairperson of the applicant’s home district NCP committee.  Both letters stated that the applicant was an active member of the party.

5. The applicant made the following additional claims at a Tribunal hearing on 24 October 2013:

   a)he had been threatened by the Maoists because he was educated, was the only one in his village who had ever travelled to Australia, was a member of a wealthy family, had a brother who was politically active and because he had joined the NCP;

   b)he was influenced by his brother to join the NCP and did so eight or nine months after his brother joined.  He had told people about the party and because of the status of his family, people listened to him.  He had also spoken about the NCP at bi-monthly meetings of a village committee created by his family to raise funds to provide support for villagers in times of need;

   c)he was beaten by the Maoists in 2006 and had to be hospitalised for one or two weeks;

   d)in 2007 he lived in Kathmandu in accommodation provided by a charity which supported victims of Maoists.  He could not have lived on his own because of a lack of security and because his family had been unable to sell its property;

   e)the police station closest to his home was one hour away so when his mother was killed the police could not attend immediately.  Later they concluded that she had been struck on the head and that the Maoists had been responsible for her death;

   f)about five months before, the Maoists had confiscated nine or ten of his family’s houses and his father could no longer live in their village.  His father had also owned a lot of land and three fishponds but half of the land and one of the fishponds had recently been taken by the Maoists;

   g)his uncle had been killed four months earlier and his paternal aunt had also been killed by the Maoists after arguing with them.  His brother, who had been the chairperson of one of the nine village committees in his home district, was being extorted by the Maoists and paid them 500 rupees a month.  He had been beaten by the Maoists in an argument about their mother’s death and had resigned from all political activities.  One of his sisters had also been threatened and told not to address any gatherings and most of his sisters did not attend festivals for fear of being harmed;

   h)the owner of the charity which supported him in Kathmandu and his brother-in-law had helped him with money to obtain his student dependant visa because, after the Maoists took over his land, his father had no longer had a large income;

   i)after his visa to travel to Australia was issued he was delayed in leaving Nepal because his purported wife had to travel elsewhere.  He had also had to pay his agent additional money to travel and it took him some time to find that money;

   j)he had delayed lodging a protection visa application because he had had no proper place to stay, could not speak English and had had difficulties finding employment.  He had also intended to obtain permanent residency through his purported wife in accordance with their contract but she had cheated him by excluding him from her application to extend her visa;

   k)he had attended NCP meetings in Australia but was not as involved as he had been when he was in Nepal.  As a result of his experiences in Nepal he was sceptical of political involvement;

   l)he could not relocate to India because there was always unrest there and there was no stability or security.  He would only be able to hide for two or three months before the people who threatened him found him; and

   m)there were inconsistencies in his evidence because he had been feeling stressed and had not been sleeping well.  He had seen some doctors and had been prescribed ointment for his head, ear drops and tablets for headaches which helped him with his stress by allowing him to sleep better.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal accepted that the applicant’s immediate family was wealthy and that as a result of that some degree of political opinion supportive of the NCP and opposed to the Maoists might have been imputed to him.  However, the Tribunal was not satisfied that the applicant had had a significant political profile, that he or members of his family had been threatened or harmed by the Maoists because of such a political opinion or that he would be at risk of harm if he returned to Nepal because of his imputed political opinion or membership of a wealthy land-holding family.  Those conclusions were based on the following findings and reasons:

   a)the Tribunal was not satisfied that the applicant’s claims about his brother’s political career were credible;

   b)the Tribunal was not satisfied that the applicant had been involved in any form of political activity while in Nepal.  In that regard:

   i)the Tribunal had doubts about the credibility of the applicant’s claimed activities with the NCP, finding that his evidence on those activities had consisted of vague generalisations.  It also found implausible his claim to have spoken to people at meetings of a local committee formed by his family, noting that it was unlikely that those people, who were related and had joined together for their own advancement, would have needed the applicant to explain the benefits of the NCP and the iniquities of the Maoists; and

   ii)the Tribunal found that although the two letters provided by the applicant described him as a political activist, they provided no detail of the work he had performed for the party.  It also found it curious that the applicant was described as a party activist when at the time the letters were written it had been two and a half years since he had left Nepal and there no evidence of him having had continuing significant contact with the NCP.  Despite those concerns, the Tribunal accepted that the letters were authentic but was not satisfied that they outweighed its concerns about the credibility of the applicant’s claims of political activism;

   c)the Tribunal noted that the applicant had provided almost no information or hospital or medical records about the one occasion he said he had been beaten and suffered injuries requiring him to be hospitalised for two weeks.  It also found that his account of living on charity while in Kathmandu in 2007 conflicted with his claim that he belonged to a wealthy family.  It that connection it noted that his evidence that his family’s wealth had been taken by the Maoists conflicted with his other claims that the alleged land confiscations had happened after he had left Nepal;

   d)the Tribunal did not find credible or consistent with a genuine fear of harm the applicant’s explanation why he had remained in Nepal for six weeks after obtaining his visa.  It also found his explanations for his delay in lodging a protection visa application once he arrived in Australia unconvincing;

   e)the Tribunal found that despite the alleged social and political prominence of the applicant’s family, he had not provided external sources such as media reports to substantiate the harm he claimed had befallen his family members.  It noted that he had referred to an official report concerning his mother’s death but had not produced that document and his evidence that that report had referred to his mother’s death as accidental was inconsistent with his claim that she had been murdered by Maoists;

   f)given its concerns about the credibility of the applicant’s account, the Tribunal was not prepared to give him the benefit of doubt about his unsubstantiated claims.  It was not satisfied that he had been injured and hospitalised as a result of a Maoist attack or that he had been forced to leave his home and live on charity in Kathmandu.  It was not satisfied that his mother had died at the hands of Maoists or that the Maoists had killed the applicant’s aunt and uncle, seized his family property, forced his father out of the family home or terrorised his sister; and

   g)the Tribunal noted that the applicant had not claimed involvement in any significant political activity after he had left Nepal and said he had become disillusioned with politics.  It was not satisfied that there was any reason to believe that he would take on the role of a political activist if he returned to Nepal or that he would be at risk of harm for that reason.

3. The Tribunal noted that the applicant claimed to have suffered from stress and blamed it for some of the inconsistencies in his evidence.  It noted that he had not substantiated his claim that he had consulted a doctor over his condition and also that the medication he claimed had been prescribed for him appeared to have little relationship with a diagnosis of stress.  Having had the opportunity to observe the applicant during the course of its hearing, the Tribunal was satisfied that he had been able to participate effectively in that hearing, had been able to articulate his claims and had replied responsively to questions put to him.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.I do not agree with the decision of the Refugee Review Tribunal on the ground of denial of fairness and justice.

   2.I argue that the Tribunal Member failed to give a proper opportunity to dispute the concerns regarding my political affiliation with Nepali Congress Party.

   3.I am a victim of the Tribunal Member’s purported decision.

Ground 1

1. The first ground of the application was not particularised and the applicant has not filed written submissions which would have otherwise given that allegation some meaningful substance.  Nor did the applicant’s submissions at the hearing today expand on that simple allegation. 

2. In any event, it is not apparent that the Tribunal breached any of the natural justice obligations imposed on it by div.4 of pt.7 of the Act. Relevantly, the applicant was invited to a hearing which he attended, at which he gave evidence and made arguments and where he was put on notice of issues potentially determinative of the review. Further, the Tribunal expressed its satisfaction that the applicant had been able to participate meaningfully in the hearing.

3. More generally in relation to the allegation that the applicant was denied justice, the Tribunal’s reasons do not disclose unreasonableness, illogicality or arbitrariness.

Ground 2

1. I agree with and adopt the following passage from the Minister’s written submissions:

   The Tribunal’s decision record shows that the applicant was given ample occasion to discuss his claimed political activities at the hearing.  The Tribunal squarely put to the applicant its concerns that on the evidence, ‘it was possible to gain the impression that he had no significant political profile in Nepal’ and that ‘it seemed difficult to believe that he would be at risk of harm because of his political opinion…’  The applicant was invited to respond to those concerns and did.

2. The portion of the Tribunal’s decision which the Minister quoted is to be found in the fifth dot point on p.8 of the Tribunal’s reasons.

Ground 3

1. The third ground of the application articulated no recognisable allegation of jurisdictional error.

Submissions at hearing

1. The submissions which the applicant made at the hearing of the present application did not in substance rise above a request that the matter be remitted to the Tribunal for further consideration.  The applicant submitted that the Department had accepted his claims, but as pointed out to the applicant during the course of the hearing, the Court is concerned with the Tribunal’s decision not with whatever findings the Department might have made prior to the Tribunal’s determination. 

2. The applicant also submitted that he had lived in Australia for a number of years and ought to be permitted to stay.  Plainly that does not point to any jurisdictional error on the Tribunal’s part.

CONCLUSION

1. Although I have found that the applicant has provided a satisfactory explanation for his failure to attend the hearing on 30 July 2015, I am not satisfied that the arguments he has raised concerning whether the Tribunal’s decision is affected by jurisdictional error would have reasonable prospects of success were the orders made on 30 July 2015 to be set aside.  

2. Consequently, the application in a case for orders to that effect will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 2 September 2016