SZUVA v Minister for Immigration

[2016] FCCA 3248

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUVA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3248

Catchwords:
MIGRATION – whether Court should set aside an Order dismissing an application for judicial review for non-appearance – found no reasonable excuse for failure of Applicant to attend and that Applicant does not have a reasonably arguable prospect of success.

Legislation:

Migration Act 1958 (Cth), s.425(1)
Federal Circuit Court Rules2001 (Cth), rr.13.03C(1)(c), 16.05

Cases cited:

Minister for Immigration and Border Protection v SZTQS (2015) FCA 1069

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

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Applicant: SZUVA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2077 of 2014

Judgment of: Judge Jones

Hearing date: 11 November 2016

Date of Last Submission: 11 November 2016

Delivered at: Melbourne

Delivered on: 11 November 2016

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: Ronald Gordon, Barrister & Solicitor

Counsel for the Respondents: Mr Hornsby

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application in a Case filed 10 October 2016 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 2077 of 2014

SZUVA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This decision is in relation to an Application in a Case filed by the Applicant on 10 October 2016 pursuant to r.16.05 of the Federal Circuit Court Rules2001 (“the Rules”), seeking that an Order made by this Court dismissing the Applicant’s application for judicial review filed on 24 July 2014, pursuant to r.13.03C(1)(c) of the Rules, be set aside.

2. The substantive matter was set for final hearing on 29 August 2016 and neither the Applicant nor his legal representative, who is the solicitor on record, attended the Court. 

3. The Applicant has filed an affidavit along with his Application in a Case, explaining the reasons for his non-attendance that day, and his lawyer’s non-attendance, and also for, (what he says is) his delay in making this application for reinstatement.

4. Earlier in the substantive proceedings, the Applicant filed an Amended Application on 27 November 2015, with the assistance of his solicitor, which set out 12 grounds of review. At today’s hearing, Mr Gordon, appearing for the Applicant, has informed the Court that the Applicant would be relying only on grounds five and 12 of the Amended Application.

5. Rule 16.05(2) of the Rules provides that:

   The Court may vary or set aside its judgment or order after it has been entered if: -

   (a)    the order is made in the absence of a party;

   …

6. The principles which apply in relation to the exercise of the Court’s discretion are set out in a decision of Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (“MZYEZ”). This decision was provided to the Court by the Minister. I should note that, unusually, I have not had the benefit of written submissions prior to this hearing, but in any event, both parties have each helpfully provided authorities.

7. At [7] of MZYEZ, Ryan J states:

   In circumstances where, as in the present case, 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.  As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

   The decision whether to reinstate the 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

   (emphasis in original)

8. I think it is accepted that there is no prejudice to the Minister in this case, in the sense that any prejudice could be overcome with a costs Orders.

9. The real argument lies in relation to whether there was a reasonable excuse, and whether the Applicant has a reasonably arguable prospect of success on the substantive application.

10. I will turn to the first issue, whether there was a reasonable excuse for the party’s absence. 

11. The Applicant’s affidavit, filed on 10 October 2016 and affirmed on 4 October 2016, in effect deposes that he was aware that there was a new hearing date on 29 August 2016, but once informed by his solicitor that he had filed and served a Notice of Address, the solicitor received no correspondence from the Court, or the Respondent’s lawyers, informing the solicitor of the hearing date. The Applicant claimed that he assumed that the Court or the Respondent would notify his solicitor of the new hearing date.  Of course, from the Court’s point of view, the Court only sends out Orders to the person who is on the Court record. At the time of the Order setting out the new hearing date, the Applicant was, of course, the person on the record, and the solicitor came onto the Court record later on. There is no dispute about that.

12. The Applicant deposes that he and his lawyer were genuinely expecting to receive communication from the Court or the Respondent’s lawyers, informing the lawyer of the hearing date. I fail to understand, if that was the case, why the Applicant did not simply say to his solicitor, “Gosh.  I know that actually there is a hearing date and it is on 29 August 2016.” It seems to me somewhat improbable that, if the Applicant and his solicitor were in communication and anticipating a hearing date, the Applicant would not have told his solicitor about the new hearing date. The Applicant says that this was the result of genuine oversight and confusion caused by his incorrect assumptions. Having considered the Applicant’s affidavit, I am not satisfied that that is a reasonable explanation. 

13. I do not accept that, during the communication process between the Applicant and his solicitor, this issue did not become evident. Further, if there had been some concern about the date of the final hearing, then a simple call to the Federal Circuit Court Registry, or indeed the Respondent, would have clarified the issue. I bear in mind that the solicitor for the Applicant filed his notice of address on 27 November 2015, so the solicitor was on record since then. It is now almost a year after that date.

14. I now turn to the question of whether the Applicant has a reasonably arguable prospect of success on the substantive application. The Applicant’s solicitor helpfully indicated to the Court, given the vast number of grounds, that the grounds that would be pursued were grounds five and 12, and explained it in a way that would need to be re-cast by way of a further amended application if the matter went ahead.

15. The ground, as I ascertain it, because I have not had written submissions, is that the Tribunal failed to comply with its obligations under sub-s.425(1) of the Migration Act 1958 (“the Act”), which provides that the Applicant be given an opportunity to provide evidence and make submissions, because the Tribunal made findings (in its decision affirming the delegate’s decision to refuse the Applicant a protection visa) on an issue which was not put to the Applicant. 

16. Taking a step back, the argument has its basis in the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”). The proposition that this decision stands for arises out of a duty to accord procedural fairness to an applicant. The proposition is that an applicant will attend a hearing, assuming that the issues in the delegate’s decision record are the live issues, and in the absence of the applicant himself or herself or through their migration agent, raising a particular issue, if the Tribunal fails to raise with the applicant an issue which may be dispositive to the Tribunal’s ultimate decision, then the Tribunal has failed to comply with its obligations to give the applicant an opportunity to give evidence and make submissions. 

17. In essence, if there has been an issue that has not been raised before and the Tribunal believes that the issue will be and, in fact, turns out to be dispositive having regard to the Tribunal’s decision record, then procedural fairness dictates that the Tribunal raise that issue with the applicant at the hearing. 

18. I am just going to set out the Applicant’s grounds five and 12 for completeness.  They are as follows: 

    5. The (then) Refugee Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it accepted that the Applicant will be incarcerated in Sri Lanka where the conditions are inhumane but then failed to properly conclude that such incarceration would put the Applicant’s life in danger and at risk of death, however the slightest;

    … 

    12. The (then) Refugee Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it misapplied the law, regulations, policy and guidelines in deciding and determining whether the Applicant was a genuine refugee and that the applicant had a genuine fear of persecution. 

19. Mr Gordon (the Applicant’s representative) has informed me that those two grounds arise from this particular ground that is now characterised before the Court, which is that sub.s425(1) of the Act was breached. The Applicant relies on a decision of Griffiths J in Minister for Immigration and Border Protection v SZTQS (2015) FCA 1069 (“SZTQS”).  I was not taken to any particular paragraphs, but Mr Gordon said, which is true, that there was an issue that his Honour believed was critical to the reasoning of the Tribunal which was not raised in the delegate’s decision, or by the Applicant by himself, and was not, on the basis of transcript, raised by the Tribunal member. 

20. I have to say, although I do not have the benefit of other authorities from the parties, this argument has been before this Court and I am aware that there are many decisions in which reliance is made on SZTQS, and Mr Gordon is correct. In each case, the question of compliance with s.425 of the Act depends on the facts and circumstances of that case. There is certainly a generalised view that that decision stands for nothing else and that it turned on its own particular circumstances. It has not been overruled but I have to say it has been distinguished, and I am not in a position today to go to those authorities.

21. There is also jurisprudence about what surety means, what a guarantor means and a whole range of other factors. 

22. The Applicant is a citizen of Sri Lanka, and he claims he is owed protection obligations arising from a fear of harm because of an imputed political opinion, because he is a Tamil, because he is a Christian and because he is a Tamil failed asylum seeker and, relevantly, for the purpose of this decision, departed Sri Lanka illegally. It is not disputed that the Applicant departed Sri Lanka illegally.

23. The relevant paragraphs which the Applicant relies on are paragraphs 76 and 77 of the Tribunal decision record: 

    76. I find that on the applicant’s return to Sri Lanka he faces short term detainment prior to applying for and obtaining bail and a fine as a result of being charged under the I&E Act. The information from DFAT is that returnees have been granted bail on personal surety immediately by magistrates. I note the applicant has a number of relatives in Sri Lanka who would be able to come and collect him from court. I note that IOM is present with the returnee during the process. I find that the short term detention does not amount to either serious harm in itself and does not amount to persecution for a Convention reason because it is the enforcement of a generally applicable law. I accept that prison conditions in Sri Lanka are poor but I do not accept that he faces a real chance of persecution for any reason (Convention or non-Convention related) during this short term period of imprisonment. 

    77. I further find that this short term imprisonment or imposition of a fine does not amount to significant harm under s.36(2A)… I accept that prison conditions in Sri Lanka are poor but the short term nature of the detention means that I find that it would constitute neither serious harm nor significant harm… I therefore find that (sic) would not face a real chance or real risk of such treatment (or any form of serious harm or significant harm) during this short stay in prison. Given the applicant’s evidence that his father owns a large coconut plantation, I do not accept that he would face imprisonment for not paying a fine. 

24. The Applicant argues that in paragraph 76 of the Tribunal decision record, there are two limbs to the Tribunal’s finding that the Applicant would only be in custody or imprisoned for a short period of time and, thereby, not suffer serious harm or significant harm. They are that, firstly, the reliance on DFAT country information that returnees have been granted bail on personal surety, and secondly, the finding that the Applicant has a number of relatives in Sri Lanka, who would be able to come and collect him from Court. The Applicant says that, on the one hand, the Tribunal member did not ask him whether the family members would provide surety, and then, secondly, whether they would come to collect him from Court. 

25. The Applicant argues that on the face of paragraph 76 of the Tribunal decision record, it can be inferred that the Tribunal’s finding is, in fact, that his relatives would be prepared to provide surety for the Applicant, so he would only spend a short period of time, if any, in prison. I note here that whilst the Applicant filed an affidavit on 10 October 2016 about his reasons for not attending Court at the last hearing date, he has not filed an affidavit which deposes, in any form, that the Tribunal did not raise as an issue that he would be granted bail on personal surety, or that he was not asked whether his relatives would provide surety, or that he was not asked whether his relatives would come and collect him from Court. The Applicant has not filed a transcript of the Tribunal proceedings. 

26. The Applicant has, in essence, asked the Court to find that there is a reasonably arguable prospect of success, based on the Tribunal decision itself. It is argued that it is to be inferred from that decision, that the Tribunal did not ask the relevant questions. I have some difficulty with this, in that a critical aspect of the Applicant’s argument at this interlocutory hearing, in which one expects to have at least an affidavit, is missing – that is, that he was not asked the questions that the Applicant says the Tribunal made findings about, and I have raised this with Mr Gordon. 

27. The Minister has, essentially, argued two things. Firstly, that this was an issue that the Applicant was aware of prior to the Tribunal hearing because it was, in fact, raised in a submission made by the Applicant’s migration agent on his behalf on 13 January 2014 (CB 148-176). The particular aspect of that submission that is relied on by the Minister is at CB 166, paragraph 73, under the heading “Forced Returns to Sri Lanka”.  In this paragraph, the submission refers to information on circumstances that occur when applicants return, focusing on when an applicant returns as a person who departed Sri Lanka illegally. That paragraph is as follows:

    73. Most - but not all - returnees are granted bail based on personal recognisance with a family member standing as a guarantor. Certain returnees (including repeat offenders and those suspected of facilitating the illegal movement of people) are not granted bail. Returnees granted bail must return to court at a later date to answer to charges under the Immigrants and Emigrants Act.

    (footnotes omitted)

28. The Minister also says that paragraph 76 of the Tribunal decision record that the Applicant relies on must be considered in context, and draws the Court’s attention to the extracts from country information that are recorded in the Tribunal decision record. The Tribunal extensively sets out extracts from a Department of Foreign Affairs and Trade report, particularly paragraphs 3.71 to 3.80 from that report (CB 222-223). The Tribunal extracts paragraph 3.79 of the DFAT report, which says the following in relation to Sri Lankans arrested under the Immigrants and Emigrants Act (CB 223):

    …The returnees have been granted bail on personal surety immediately by the magistrate. Sometimes returnees then need to wait until a family member comes to court to collect them. IOM is present with the returnee during this process.

29. The Minister argues that the paragraph 76 of the Tribunal decision record needs to be understood in this context.

30. I now turn to consider whether the Applicant has a reasonably arguable prospect of success. I have had regard to the proposition for which SZBEL stands for and, in doing so, the Tribunal decision as a whole.  In my opinion, paragraph 76 of the Tribunal decision record, read in context having regard to the extract from the DFAT material set out earlier in paragraph 40 of the decision record, says no more than that the country information contained in the DFAT report on returnees who return illegally shows that they have been granted bail on personal surety.

31. There is a difference, as the Minister points out, between personal surety and surety given by a family member. The Tribunal member does not find that the family members will provide surety. The Tribunal is simply saying, referring to the DFAT information, that returnees have been granted bail on personal surety immediately by the magistrate. To be sure, the Tribunal notes that the Applicant has a number of relatives, and this is not disputed – and finds that they would be able to come and collect him from the Court.

32. The Applicant’s argument now, it seems to me, is that the issue of whether the Applicant’s relatives would come to collect him from Court, was not put to him by the Tribunal. But in the event that this is not the Applicant’s argument, then I am satisfied about this: the issue of the provision of bail based on personal recognisance or surety was an issue that had been raised prior to the Tribunal hearing and, in fact, had been raised by the Applicant’s migration agent in her submissions, where it was stated (CB 166 at [73]):

    Most - but not all - returnees are granted bail based on personal recognisance with a family member standing as guarantor…

    (footnotes omitted)

33. That issue was raised by the Applicant’s migration agent and, therefore, could not be said to have been an issue about which the Applicant was unaware. It does not fall within the parameters of the lack of procedural fairness that the decision in SZBEL was concerned with. If I have not already made it clear, I do not accept that paragraph 76 of the Tribunal decision record can be read as a finding that the Applicant’s relatives would provide surety. It simply does not emerge from a fair reading of that paragraph. It is fair to say – and clear – that the Tribunal member finds that the relatives would come and collect him from Court.

1. The relevance of this is not particularly clear except that there is a requirement that a relative collects detainees from Court, I presume, for the purpose of bail. However the critical issue is that I cannot be confident from paragraphs 76 or 77 of the Tribunal decision record that the Applicant was not asked about these matters, because he has not put in affidavit, provided a transcript of the Tribunal hearing or put any other evidence before the Court to enable the Court to confidently conclude that he has a reasonable prospect of successfully claiming that he was not asked about that issue.

2. I have formed the view that, if it is simply the question that the Tribunal found that the Applicant’s relatives would come and collect him from Court, then it could not be said that the Applicant has a reasonably arguable prospect of success to argue that he was not afforded procedural fairness. The circumstances in this case go nowhere near the circumstances in SZTQS, and that decision simply turns on its particular circumstances.

Conclusion

1. Consequently, I am not satisfied that the Applicant has a reasonably prospect of success on his substantive application. I make two findings. Firstly, I find that there was not a reasonable excuse for the Applicant’s non-attendance, and secondly, that the Applicant does not have a reasonably arguable prospect of success in his substantive application.  Consequently, I will dismiss the Applicant’s Application in a Case with costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date:     14 December 2016