SZUFS v Minister for Immigration and Border Protection
[2015] FCCA 545
•11 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUFS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2015] FCCA 545 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – application for reinstatement after dismissal of show cause application – non appearance by the applicant. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 65, 426A |
| Akpata v Minister for Immigration [2005] FCAFC 250 Minister for Immigration v Guo & Anor (1997) 191 CLR 559 MZKAJ v Minister for Immigration [2005] FCA 1066 MZYEZ v Minister for Immigration [2010] FCA 530 NAVX v Minister for Immigration [2004] FCAFC 287 Nukala v Minister for Immigration & Anor [2013] FCCA 2322 Prasad v Minister for Immigration (1985) 6 FCR 155 Randhawa v Minister for Immigration (1994) 52 FCR 437 Singh v Minister for Immigration & Anor [2014] FCCA 960 SZUFS v Minister for Immigration & Anor [2015] FCCA 193 |
| Applicant: | SZUFS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1079 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2015 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Ms F Taah of Australian Government Solicitor |
INTERLOCUTORY ORDERS
The Application in a Case filed on 26 February 2015 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $937.
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service.
No further application for reinstatement by this applicant is to be accepted for filing without leave of the Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1079 of 2014
| SZUFS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an Application in a Case filed on 26 February 2015 seeking the reinstatement of a show cause application seeking review of a decision of the Refuge Review Tribunal (Tribunal). I dismissed the show cause application on 30 January 2015 on account of the non-attendance of the applicant.
The application is supported by an affidavit filed with it in which the applicant seeks to explain his non-attendance by reason of confusion. The background is otherwise dealt with in written submissions filed on behalf of the Minister on 10 March 2015.
By application filed on 17 April 2014, the applicant sought judicial review of a decision of the Tribunal dated 14 March 2014 which affirmed a decision of a delegate of the Minister not to grant him a Protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth) (Migration Act).
The application was listed for a first court date on 28 May 2014, which the applicant attended, when it was listed for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Rules) on 3 December 2014. However, by letter dated 11 November 2014, the parties were informed by the Court that the application had instead been listed for a callover at 10.15am on 30 January 2015 at court 8.1, level 8, 80 William Street, Sydney. The parties were also informed of the change in listing details by email on 20 January 2015.
The applicant failed to appear at callover on 30 January 2015 and the Court made orders, among other things, dismissing the application for review due to the applicant’s non-appearance, pursuant to rule 13.03C(1)(c) of the Rules, and requiring the applicant to pay the Minister’s costs.[1]
[1] SZUFS v Minister for Immigration & Anor [2015] FCCA 193
The orders were entered on 19 February 2015.
The Application in the Case was listed for hearing today at 9.30am. When the matter was called at 9.47am, was no appearance by or on behalf of the applicant. The solicitor for the Minister pointed out that the registry had indicated, when allocating a return date on the application, that the matter would be dealt with at 80 William Street, although that was subsequently corrected by email from the registry to the parties.
I adjourned so that an attempt could be made to contact the applicant by telephone. Two attempts were made, approximately 20 minutes apart. On both occasions the line rang out, indicating that the applicant was not paying attention to his mobile phone. My associate also made inquiries of court staff at 80 William Street who indicated that there was no sign of the applicant there. It seems unlikely, therefore, that he attended William Street in error.
I delayed returning to the bench until 10.15am in order to give the applicant time to make his way to John Maddison Tower in case he had attended the court registry at Queen Square.
The matter was called a second time at 10.16am and once again there was no answer to the call.
There is no explanation for the applicant’s non-attendance today. That provides a sufficient basis for the dismissal of the application for reinstatement.
However, in view of the circumstances leading to that application and subsequently, I have considered the merits of the application. If the applicant had attended, then, subject to anything further he might have wished to put before me, I would not have granted the application. In that regard, I agree with the Minister’s written submissions.
Under rule 16.05(2)(a) of the Rules, the Court may set aside a judgment or order after it is entered if it was made in the absence of a party.
The considerations for setting aside an order made in the absence of a party are set out in various judgments of the Federal Court and this Court.[2] They are:
a)whether there is an adequate reason for the non-appearance;
b)whether there is no delay in making the application to set aside;
c)whether the party, in whose favour orders have been made, would be prejudiced by a new hearing in any respect which could not be adequately compensated for by a suitable award of costs or by the giving of security for costs;
d)whether there is an arguable case on the merits of the substantive application.
[2] Akpata v Minister for Immigration [2005] FCAFC 250 at [13]; Nukala v Minister for Immigration & Anor [2013] FCCA 2322; Singh v Minister for Immigration & Anor [2014] FCCA 960
Adequate reason for non-appearance
The applicant’s reason for his non-appearance is that he was “confused about the court date”.[3] It appears that the applicant attributes this confusion to the change in listing date of the application.
[3] Applicant’s affidavit filed on 26 February 2015 at [1]
This is not an adequate reason for the applicant’s non-appearance at the callover on 30 January 2015, given the applicant was notified of the change in listing of the application by letter and email, with the applicant confirming receipt of the email in his affidavit filed with the Application in a Case.
Delay in making application to set aside
The application in a case was filed 27 days after the orders were made. This is not an insignificant delay.
It is unclear when the applicant became aware of the making of orders. The fact remains however, that the applicant was aware of the listing on 30 January 2014, did not attend that listing, and did not file the application in a case until 26 February 2015.
Prejudice to the Minister
Whilst there may not be any prejudice to the Minister, this is insufficient to warrant the setting aside of the orders in light of the lack of the applicant’s confirmation of his receipt of the email notification of the callover and the lack of an adequate explanation for his non-appearance.
Merits of the substantive application for review
In any event, the reinstatement application should be refused because the applicant has raised no arguable case in the application.
The decision whether to reinstate the application not only depends on the existence of a reasonable explanation for the applicant’s failure to appear, but also whether, if reinstated, the application has a reasonable chance of success. If not, there is no purpose in reinstatement.[4]
[4] MZKAJ v Minister for Immigration [2005] FCA 1066 at [18]; MZYEZ v Minister for Immigration [2010] FCA 530 at [7]
The applicant’s background and claims for protection, the Tribunal’s decision and the ground of the application are briefly discussed below.
Applicant’s background and protection claims
The applicant is a national of Bangladesh. He arrived in Australia on 15 April 2004 on a School Sector visa which expired on 29 April 2004. He was granted a further School Sector visa in 2004, followed by a Vocational Education and Training visa in 2005, which expired on 24 April 2006. Since then, the applicant has been granted a number of bridging visas.[5]
[5] Relevant Documents (RD) 46; 64-69
On 15 October 2012, the applicant lodged an application for a protection visa.[6] The protection claims contained in the application may be summarised as follows:
a)members of the Awami League attempted to kill his father who was a member of the Bangladesh National Party (BNP). In 1996, the Awami League destroyed his father’s business. The applicant’s family complained to the police however the police did nothing because of his father membership of the BNP.[7]
b)in 1998, the applicant’s family house was attacked by the Awami League and the applicant was stabbed.[8]
c)in 2003, the Awami League attacked the applicant and his uncle in a restaurant. They were beaten and hot oil was thrown on them.[9]
d)the applicant believes that if he goes back to Bangladesh, he will be harmed by his father’s enemies, the Awami League, who believe that he will take his father’s place in the BNP, and/or, that false charges will be laid against him by corrupt police who are influenced by the Awami League.[10]
[6] RD 1-36
[7] RD 16
[8] RD 17
[9] RD 17
[10] RD 9
On 6 February 2013, the applicant attended a protection visa interview[11] where he explained that his father was the BNP member for his village, Narainpur, but after problems with the Awami League which caused his father to close his business, they moved to Dhaka in 2001 or 2002.[12] The applicant claimed that upon his father’s death in 2005, he and his family did not face any serious problems from the Awami League.[13]
[11] RD 48
[12] RD 51
[13] RD 52
On 22 March 2013, a delegate of the Minister refused to grant the applicant a protection visa.[14]
[14] RD 45-54
On 19 April 2013, the applicant applied to the Tribunal for a review of the delegate’s decision.[15]
[15] RD 56-61
By letter dated 3 January 2014, the Tribunal invited the applicant to attend a hearing on 14 March 2014 at 1.00pm.[16]
[16] RD 70-70
On the morning of the Tribunal hearing date, the applicant contacted the Tribunal by telephone and indicated that he had decided not to attend the hearing. He confirmed that he understood that the Tribunal would proceed to make a decision of the material before it.[17]
[17] RD 86
Consequently, no Tribunal hearing was held and on 14 March 2014, the Tribunal decided to affirm the delegate’s decision.[18]
[18] RD 88-91
Tribunal’s decision record
The Tribunal noted that just prior to the applicant’s scheduled hearing, the applicant informed the Tribunal that he would not attend the hearing. The Tribunal then proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it, in accordance with s.426A of the Migration Act.[19]
[19] RD 89 [3]
The Tribunal stated the criteria for the grant of protection visas and provided a summary of the applicant’s protection claims.[20]
[20] RD 89 – 90 [4]-[7]
Whilst the Tribunal accepted the practice in Bangladesh for a son to take over a father’s position, it noted that the applicant himself had never been involved in politics and had indicated that he did not wish to be. The Tribunal found that the applicant had not done anything since his father’s death that would suggest to the Awami League that he would take over his father’s position in the BNP. Nor was there any evidence before the Tribunal suggesting that the Awami League had shown any adverse interest in the applicant since his father’s death. The Tribunal was therefore not satisfied that members of the Awami League would believe that the applicant wants or intends to take over his father’s position. On the evidence before it, the Tribunal was not satisfied that the applicant would face a real chance of Convention related persecution in the reasonably foreseeable future if returned to Bangladesh.[21]
[21] RD 91 [11]
The Tribunal then considered the alternative criteria in s.36(2)(aa) of the Migration Act, however found that the applicant did not satisfy that criteria, noting again, the remote possibility that members of the Awami League would believe that the applicant intended to take over from his father.[22]
[22] RD 91 [12]
The application for review
The grounds of the application are in the following terms:
1.Tribunal has made error, s 36(2) that my fear is not real
2.Tribunal has made error s 36(aa)
The applicant has raised no arguable case in his application. His grounds are mere assertions which do not reveal any error in the Tribunal’s decision or processes.
Contrary to what appears is being asserted, the Tribunal considered the applicant’s claims under both the Refugees Convention (s.36(2)(a)) and the complementary protection criteria (s.36(2)(aa)), however it was not satisfied that the applicant fulfilled either. The Tribunal was not obliged to accept any or all of the applicant’s claims.[23] The Tribunal’s findings were open on the limited evidence that was before it. In circumstances where the applicant expressly declined to attend the Tribunal hearing to elaborate on his claims, “the inevitable consequence was the rejection of his application”.[24]
[23] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-70 per Wilcox J
[24] NAVX v Minister for Immigration [2004] FCAFC 287 at [5]
I will order that the Application in a Case filed on 26 February 2015 be dismissed.
In consequence of the dismissal of the reinstatement application, the Minister seeks an order for costs fixed in the sum of $937. I will order that the applicant pay the first respondent’s costs fixed in that amount.
I will further order that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be served upon the applicant by ordinary pre-paid post at his last known address for service.
I will further direct that no further application for reinstatement by this applicant be accepted for filing without leave of the Court.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 March 2015
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