SZVEB v Minister for Immigration
[2015] FCCA 956
•27 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVEB v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 956 |
| Catchwords: MIGRATION – Application dismissed summarily for non-appearance – application to set aside summary dismissal – relevant considerations. |
| Legislation: Migration Act 1958, ss.36, 425A, 426A, 441A, 441G Migration Regulations 1994, reg.4.35D |
| Applicant: | SZVEB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2677 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 27 March 2015 |
| Date of Last Submission: | 27 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms N. Maddocks of DLA Piper |
ORDERS
The applicant’s application in a case filed on 2 March 2015 be dismissed.
Order 2 made on 29 January 2015 be vacated.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $5,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2677 of 2014
| SZVEB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan who arrived in Australia on 29 May 2012. On 30 September 2013 he lodged an application for a protection visa alleging that he feared persecution in Pakistan because of his political opinion and religious beliefs. On 26 February 2014 his application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has sought judicial review of the Tribunal’s decision with this Court.
The applicant’s application was listed for its first court date on 28 October 2014. The applicant appeared in person and in his presence the matter was listed for a call-over on 29 January 2015. The applicant did not appear at the call-over on 29 January 2015 and on the application of the Minister the proceeding was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”).
These reasons concern an application in a case filed by the applicant on 2 March 2015 seeking an order reinstating his application. In substance, what the applicant sought was the setting aside of the order dismissing this application.
For the reasons which follow, the application will be dismissed.
Background facts
Primary application
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa. As summarised by the Tribunal, the applicant claimed in his application form that if he returned to Pakistan he would be harmed by Sunni Muslims and the Pakistani government because he was a Shia Muslim and a member of the Muttahida Quami Movement. The applicant also claimed that he had been falsely implicated in a murder, held in police custody for six months and tortured.
An interview between the applicant and the delegate was scheduled for 18 February 2014 but the applicant failed to attend. As already noted, on 26 February 2014 the delegate refused the applicant’s application.
The Tribunal
On 5 August 2014 the Tribunal wrote to the applicant to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 1 September 2014 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his application without further notice. The hearing invitation letter was posted to the applicant’s authorised recipient pursuant to s.441G of the Migration Act 1958 (“Act”). No response was received and the applicant did not appear before the Tribunal on the day and at the time he was scheduled to attend. In those circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal’s decision and reasons
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.
The Tribunal found that the applicant’s claims as set out in his application were bare assertions which lacked any detail. It noted that he had not outlined any specific instances of harm he claimed to have suffered because of his religion or political opinion and had not identified a basis upon which he claimed he would face harm for those reasons. On the evidence before it, the Tribunal was not satisfied that the applicant would face harm because of his religion or political opinion if he returned to Pakistan.
The Tribunal also noted that the applicant had not provided any detail in relation to his claims to have been implicated in a murder, detained and tortured by the police and had not indicated the basis upon which he claimed to have been falsely implicated in the murder. In the absence of such detail, the Tribunal was unable to be satisfied that the applicant had been implicated in a murder, detained and tortured or that there was a real risk that he would be “framed”, detained and tortured if he returned to Pakistan.
Application for reinstatement of the proceeding
In considering whether to set aside a decision dismissing an application, the Court’s discretion is not fettered although a number of considerations are regularly taken into account.
In this case, the considerations which I consider to be relevant to take into account are whether the applicant has a satisfactory explanation for his non-attendance at the call-over at which his application was dismissed and whether, were the matter to be reinstated, the substantive application would have reasonable prospects of success, noting that under the Rules a proceeding which does not have reasonable prospects of success is liable to summary dismissal.
In support of his application to set aside the dismissal of his application the applicant filed in Court at the hearing of this interlocutory application an amended application in a case together with an affidavit of Sher Afzal Khan affirmed 27 March 2015. The combined effect of those documents was an assertion that the applicant was unwell on 29 January 2015, apparently as a result of depression, and failed to attend on that account. The applicant made similar submissions at the hearing of this interlocutory application and, although he did not give evidence, I am willing to accept for present purposes the accuracy of what he told me from the bar table.
In those circumstances, I am satisfied that the applicant does have a satisfactory explanation for his non-attendance at the call-over. However, as already indicated, that is not sufficient to justify the setting aside of the dismissal.
The allegation which the applicant made in his initiating application was:
The RRT decision is administrative error and miscarriage of justice.
It appeared from the applicant’s submissions that this allegation concerned the fact that the Tribunal proceeded to make a decision on his review application without him having had the opportunity to appear before it to give evidence and present arguments. It is apparent that the Tribunal believed that it had complied with the statutory provisions which permitted it, pursuant to s.426A of the Act, to proceed to make a decision in the applicant’s absence. The evidence on those issues is set out in the Court Book, which was exhibit A, and in the affidavit of Nicole Marie Maddox affirmed 12 January 2015.
That evidence satisfies me that the requirements of ss.425A, 441A(4) and reg.4.35D of the Migration Regulations 1994 were satisfied in this case, noting that the Tribunal’s invitation letter inviting the applicant to a hearing was dated 5 August 2014, posted on 6 August 2014 to his authorised recipient and concerned a hearing listed for 1 September 2014. In those circumstances, the Tribunal was empowered pursuant to s.426A to proceed to make a decision on the review without permitting the applicant to attend before it.
I appreciate that the applicant feels a sense of grievance that he did not receive a copy of his hearing invitation which, for present purposes, I am prepared to accept is the case. It appears from the affidavit of Mr Khan, who has been assisting the applicant for some time, that Mr Khan, as the applicant’s authorised recipient, did not receive a copy of the hearing invitation and so could not pass it on to the applicant. However, as explained to the applicant at the hearing of this application, if the Tribunal observes the statutory and regulatory requirements for the provision of a hearing invitation, the fact that an applicant does not receive that invitation does not invalidate the Tribunal’s decision on the review. An applicant is deemed to have received such a document if the Tribunal complies with the statutory and regulatory requirements to which I have referred. That was the case here.
Finally, to the extent that the applicant’s argument was that the Tribunal’s decision itself was erroneous, it does not appear to me that such an allegation could be made out. The Tribunal affirmed the decision of the delegate because there was insufficient evidence before it to satisfy it that the applicant met the criteria for the grant of a protection visa. No doubt that was significantly contributed to by the applicant’s failure to attend before the Tribunal, but the fact is that the Tribunal considered the evidence before it to be too insubstantial for it to reach the necessary state of satisfaction. In those circumstances, it had no alternative under the Act but to affirm the delegate’s decision.
Conclusion
Although I have concluded that the applicant did have a satisfactory explanation for his failure to attend the call-over on 29 January 2015, I have also concluded that the substantive application which he would wish to make to the Court, were the dismissal to be set aside, would not have reasonable prospects of success.
In those circumstances, I refuse the application to set aside the interlocutory dismissal of this matter. The application in a case filed on 2 March 2015 will be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 17 April 2015
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