SZULV v Minister for Immigration

[2015] FCCA 2002

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZULV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2002

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside orders dismissing application for judicial review made in the absence of the applicant – whether applicant has given a reasonable explanation for not appearing at the hearing – whether applicant has reasonably arguable prospects of succeeding on his application for review if the matter is reinstated – application to set aside orders dismissing application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: SZULV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1504 of 2014

Judgment of: Judge Manousaridis

Hearing date: 16 July 2015

Delivered at: Sydney

Delivered on: 24 July 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Mr S Speirs of Clayton Utz

ORDERS

1. The name of the second respondent is changed to Administrative Appeals Tribunal.

2. The application in a case filed on 25 June 2015 is dismissed.

3. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1504 of 2014

SZULV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 14 August 2014 I set down for hearing at 2.15 pm on 3 June 2015 an application filed by the applicant for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to refuse the applicant a Protection visa.

2. On 3 June 2015 however, the applicant did not appear. On the application of the Minister, I made an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) dismissing the application for judicial review.

3. On 25 June 2015 the applicant filed an application in a case. Although that application does not in terms seek an order that the orders I made on 3 June 2015 be set aside, I will assume that that is the relief the applicant is seeking. Under r.16.05(2)(a) of the FCC Rules, the Court has power to set aside orders made in the absence of a party.

Principles

1. The principles that govern the Court’s exercise of the power under rule r.16.05(2)(a) of the FCC Rules were discussed by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]

   In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

   (a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   (c) whether the applicant has a reasonably arguable prospect of success on the substantive application.

   [1] [2010] FCA 530 at [7]

Explanation for non-appearance

1. The applicant filed an affidavit which contained an explanation for the applicant’s not having appeared at the hearing of 3 June 2015. The applicant, however, who is not legally represented, did not rely on that affidavit. Instead, the applicant relied on evidence he gave at the hearing before me. The effect of that evidence is that he was in Queensland on the day of the hearing, and he was not sure about the hearing date.

2. I accept the applicant’s evidence that he was in Queensland on 3 June 2015, but make no finding about whether the applicant was unsure of the hearing date. Even if the applicant was unsure of the hearing date, however, that would not afford a reasonable excuse for his not attending the hearing. The applicant was before the Court on 14 August 2014 when I set the matter down for hearing. It was the applicant’s responsibility to ensure he appeared on the day of the hearing.

3. That the applicant has not provided a reasonable excuse for not attending the hearing would not be determinative of his application to set aside the orders I made on 3 June 2015. I would be inclined to set aside those orders if I find that the applicant would have a reasonably arguable prospect of succeeding on his application for judicial review, if the orders I made on 3 June 2015 are set aside. It is to that question I now turn.

Reasonably arguable prospect of success?

1. To be in a position to assess whether the applicant would have a reasonably arguable prospect of success, it will be necessary first to consider the claims for protection the applicant made, and the Tribunal’s reasons for rejecting those claims.

Claims for protection

1. The applicant claims to have left Korea because his father was an alcoholic who became violent when he was drunk, and would beat the applicant with a bat or a stick almost every day.[2] The applicant’s mother was also beaten by his father and left the family home. Her whereabouts are unknown. The applicant’s older brother lives with their father. The applicant’s brother and father sold some land but they spent all the money from the sale of the land. The applicant’s brother and father have a debt owing to the agricultural credit union, and now live on rice provided by the local government.

   [2] CB8

2. The applicant joined the army and served for four years.[3] When he returned home nobody was making money to cover the living expenses so the applicant borrowed money from banks, credit card companies, and friends. The applicant also took out a loan and borrowed money to pay for a car accident and an injury the applicant suffered. The applicant had to borrow money from Japanese gangsters called “Sanwa Money”. The applicant heard that if borrowers do not return the money or pay off the interest in time, gangsters are sent to threaten to kill borrowers. The applicant feared he might be killed by the gangsters or creditors that were urging the applicant to pay back the $35,000 debt he had accumulated. The applicant claims his father kicked him out of home and eliminated his name from the family register.

   [3] CB9

3. The applicant fears returning to Korea as Japanese gangsters can travel to Korea at any time because of a special visa agreement between the two countries.[4] The applicant claims that returning to Korea is “like jumping into [a] burning house holding [a] bomb”.[5] The applicant fears harm from the Sanwa gangsters and other creditors.[6] The applicant claims that creditors in Korea hire professional debt collectors who chase up, threaten, stalk, kidnap, shoot and bury debtors in the mountains.[7] The applicant claims the authorities in Korea will not be able to protect him.[8]

   [4] CB9

   [5] CB9

   [6] CB10

   [7] CB10

   [8] CB11

Tribunal’s reasons for decision

1. The Tribunal did not accept as credible the applicant’s claims regarding his owing a debt to moneylenders in Korea.[9] The Tribunal found the applicant’s evidence on the following matters to be “totally unconvincing”:[10]

   a)When the Tribunal asked the applicant how much Korean won he had borrowed from Sanwa Money the applicant said he thought he borrowed about 35 million Korean won, but knew the debt owing was 35,000AUD.[11]

   b)When asked what the interest rate was on his loan, the applicant told the Tribunal that “he did not know exactly, but assumed it was very high”.[12]

   c)When asked if he had received any documents about the loan, the applicant told the Tribunal he thought there would be documents in Korea, but did not know.[13]

   d)When asked if he was given a loan agreement to read and sign, the applicant said he had been given a document, he thought he had read it, and the term of the loan was that he had to repay it within a year.[14]

   e)The applicant guessed that his loan could be up to 50,000AUD.[15]

   f)The applicant told the Tribunal that he had paid some of the loan back and did not think he was far behind in his repayments when he left Korea, but had made no repayments since arriving in Australia.[16]

   [9] CB85, [39]

   [10] CB85, [39]

   [11] CB84, [28]

   [12] CB84, [29]

   [13] CB84, [30]

   [14] CB84, [32]

   [15] CB84, [33]

   [16] CB84, [34]

2. The Tribunal concluded as follows:[17]

   Having heard the applicant’s evidence at the hearing, the Tribunal does not accept his claims regarding his debts to moneylenders in Korea to be credible. As set out above, the Tribunal questioned him about the size of the debt and the terms under which it was to be repaid, as well as about the documentation of the loans. The Tribunal found his evidence on these matters to be totally unconvincing. He was unable to say what the interest rate on the loan was, he had difficulty in stating how much he had borrowed in Korean won (as opposed to Australian dollars), and he could not say whether or not he had received any documentation regarding the loan or what such documentation contained. He was also unable to say how much of the loan he had repaid, or how far behind in his repayments he was when he left Korea.

   [17] CB85, [39]

3. Further, the Tribunal found the applicant’s answers to be “extremely vague and uncertain” when going beyond the claims written in his application for a Protection visa.[18] Thus, the Tribunal did not accept the applicant’s claims that he has a debt in Korea or that he fears persecution from moneylenders in Korea.[19]

   [18] CB85, [40]

   [19] CB85, [41]

Grounds of application

1. The applicant has raised two grounds in support of his application for judicial review:

   1. RRT have descriminatio [sic] on me, failed to take my real situation into consideration.

   2.RRT and DIBP are unfair to me, they don’t believe what I claimed.

2. As to the first ground, there is nothing in the Tribunal’s decision, or in the other material before me, that could reasonably suggest the Tribunal discriminated against the applicant, or that the Tribunal did not consider the claims the applicant made. The Tribunal’s reasons indicate the Tribunal did consider the applicant’s claims. Unfortunately for the applicant, the Tribunal did not accept the central factual element of the applicant’s evidence, namely, that he had contracted a loan and that the applicant would suffer harm on his return to Korea because he is unable to repay the loan. The applicant has no reasonably arguable prospects of succeeding on a claim that it was not reasonably open to the Tribunal to rely on the matters on which it did for not accepting the applicant’s evidence on this issue.

3. As to the second ground, the only reason on which the applicant appears to rely for claiming that the Tribunal was unfair to the applicant was that it did not believe the applicant. There are no reasonable prospects of the applicant succeeding on a claim that the Tribunal was unfair to the applicant only because it did not believe the applicant. That by itself, cannot constitute unfairness.

4. During the hearing before me the applicant submitted that the Tribunal did not decide the applicant’s case based on “the real situation”. He submitted that, having been in Australia for five years, it will be even more dangerous for the applicant if he now returns to Korea. The applicant said he has lost contact with his family. Finally, the applicant submitted that the Tribunal decided his case based on country information rather than by considering the circumstances of the applicant.

5. There are no reasonably arguable prospects of the applicant succeeding in his submission that the Tribunal did not decide the applicant’s case by reference to the specific circumstances of the applicant. The Tribunal considered the applicant’s claims and gave reasons specific to those claims for rejecting them. There are also no reasonably arguable prospects of the applicant succeeding on the basis of his submission that things will be worse for him now if he returns to Korea. That would be a matter that goes to the merits of the application that was before the Tribunal, and this Court has no jurisdiction to review the merits of decisions made by the Tribunal.

Conclusion and disposition

1. In my opinion, the applicant would not have reasonably arguable prospects of succeeding on his application for judicial review if I were to set aside the orders I made on 3 June 2015. That means that the applicant will not in truth suffer any prejudice if I do not set aside those orders. On the other hand, the Minister will suffer prejudice if I were to set aside the orders because he would expend time and costs on proceedings in which the applicant would have no reasonably arguable prospects of succeeding.

2. The application in a case filed on 25 June 2015, therefore, will be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 24 July 2015