SZVGO v Minister for Immigration

[2016] FCCA 1972

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVGO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1972

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 First Court Date – whether applicant has reasonably arguable prospects of succeeding on his application for review if the matter is reinstated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425, 425A(1), 425A(2),

426A, 426A(1)(a) , 441A, 441A(5)(b)

Federal Circuit Court Rules2001 (Cth), rr.13.03(1)(c), 16.05(2)(a)

AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123

Applicant: SZVGO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2830 of 2014

Judgment of: Judge Manousaridis

Hearing date: 22 July 2016

Delivered at: Sydney

Delivered on: 22 July 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Mr J Hutton of Australian Government Solicitor

ORDERS

1. The application in a case filed by the applicant on 28 June 2016 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $850.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2830 of 2014

SZVGO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. On 1 December 2015 I made an order pursuant to r.13.03(1)(c) of the Federal Circuit Court Rules2001 (Cth) (FCC Rules) dismissing the application.  I made that order because at 10.15 am on that day there had been set down for hearing the applicant’s application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (class XA) visa (Protection visa), but the applicant did not appear.  On 28 June 2016 the applicant filed with the Court an application in a case seeking an order that the orders I made on 1 December 2015 be set aside. 

2. Although not stated in the application in a case, I will take it that the applicant relies on r.16.05(2)(a) of the FCC Rules.

Principles

1. The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were considered 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]

2. I therefore turn to the first matter I need to consider, and that is the reasons for the applicants not appearing at the hearing of this matter on 1 December 2015. 

Reasons for non-appearance

1. In an affidavit made on 17 December 2015, the applicant deposes to the reason for which he says he did not attend the hearing.  The applicant says two things.  The first is that the applicant is not represented by any solicitor and therefore is not “fully aware of the legal consequence of the Court hearings”. Second, the applicant says he could not attend the hearing “because I was not aware of the hearing date had been changed from 3 December to 1 December” and that the applicant had “not received any letter about the change hearing date”.

2. The applicant was not cross-examined on his affidavit.  When I asked the applicant why he did not attend the hearing, he said he did not receive any notification from the Court.  This may be interpreted as giving a different explanation for the applicant’s non-attendance than the explanation the applicant gives in his affidavit.  The account the applicant gives in his affidavit implies the applicant had a belief that the matter had initially been set down for hearing on 3 December 2015 but was then altered to 1 December 2015 without the applicant’s being informed of that change.  There is nothing before me which could have given the applicant reasonable grounds for believing the matter had been set down for hearing on 3 December 2015. 

3. On 12 November 2014, the applicant appeared before me on a first Court date in relation to the matter.  The applicant signed draft short minutes of order containing directions for the further conduct of the matter.  Paragraph 9 of the draft short minutes of order provided that the matter be set down for hearing.  Although I do not have a specific recollection of the first Court date in this matter, my usual – and I would say my invariable – practice at that time when I presided over first Court dates in migration matters was as follows.

4. In most cases, the legal representative of the Minister and the applicant would have agreed to the making of directions.  Dates would have been agreed by which various steps had to be taken.  But the date on which the matter would be set down for hearing would be left blank.  The signed document with the blank hearing date would be provided to me.  I would suggest a particular date and time of a hearing for the matter.  And if the date and time was suitable to both parties, I would write the date and time on the short minutes of order that have been provided to me.  It was my usual observation that as I did that, either the interpreter, if there was one, or even where there was one, the solicitor for the Minister would write on the applicant’s copy of the short minutes of order the hearing date and time. 

5. There is in the Court file in this matter – and indeed it has been tendered as an exhibit – the short minutes of order that were handed up to me on 12 November 2015. That contains a date in paragraph 9 in my handwriting.  And the relevant date is 10.15 am on 1 December 2015.  There is nothing to cast any doubt in my mind that on the first Court date of this matter, I followed the usual procedure and that I had informed both parties that the matter had been set down for hearing at 10.15 am on 1 December 2015.  There is nothing in the file to indicate that the matter had ever been set down for hearing on 3 December 2015. 

6. Even if I were to accept that the applicant erroneously believed that the matter was set down for hearing on 3 December 2015 or, alternatively, he was expecting to obtain a letter from the Court confirming the hearing date, these matters by themselves do not constitute a reasonable explanation for his not attending on 1 December 2015. Given that the applicant appeared on the first Court date on 12 November 2014 where, as I have found, he must have been told of the date and time of the hearing,  it was and remained the responsibility of the applicant to ensure that he attended the hearing at the appointed date and time.

7. There is a separate matter which is relevant to the exercise of discretion.  When I asked the applicant when he first became aware of the orders I made on 1 December 2015, the applicant said it was about “four to five months ago”.  That cannot be correct because the application and supporting affidavit that the applicant filed in support of this application bear the dates of 17 December 2015. When I asked the applicant why it was that he did not file his application until 28 June 2016, the applicant said that he had prepared the affidavit and provided that affidavit to his solicitor.  There is no evidence apart from the applicant’s assertion that he did have a solicitor, but that assertion seems to be contradicted by the first paragraph of his affidavit where the applicant said he was not represented by any solicitor.  In any event, even if one were to accept that the applicant did have a solicitor, the delay between the applicant having prepared his documents in relation to the setting aside of the orders I made on 1 December 2015 and the date on which those documents were, in fact, filed remains unexplained. 

8. Even in cases where there is no adequate explanation for non-attendance, the most significant matter the Court takes into account when exercising its jurisdiction to set aside orders is whether the application which was dismissed by those orders has reasonably arguable prospects of succeeding if the orders dismissing that application are set aside.  It is to that question I now turn; and that requires me first to set out the claims for protection the applicant made before the Tribunal and the Tribunal’s reasons for rejecting those claims.

Applicant’s claims for protection

1. In his application for a Protection visa, the applicant, who is a citizen of India, claimed he feared harm from his former parents-in-law.  The basis of that claimed fear is that the applicant came to Australia with his wife as the holder of a Vocation, education and training sector (Dependent - Subclass 572) visa.  After they arrived, the applicant’s wife met someone else and asked the applicant for a divorce.  The applicant’s wife, however, informed her parents that the applicant had “tortured her physically”.  The applicant’s in-laws are very influential people and they had already threatened the applicant’s parents and warned them that if the applicant were to return to India, they would take revenge on him.  The applicant further claimed that one of the brothers of his ex-wife telephoned the applicant and threatened him. 

Before the Tribunal

1. The applicant did not appear before the delegate, even though he was invited to do so.  Nor did the applicant appear before the Tribunal, even though the Tribunal by letter sent by email on 18 August 2014 invited him to appear before it on 8 September 2014.  In that letter, the Tribunal stated it had “considered the material before it but is unable to make a favourable decision on this information alone”. There is, in evidence, a case note prepared by an officer of the recording that, on 20 August 2014, that officer rang the applicant on his mobile telephone and left a message asking that he contact the officer to confirm that he had received the email invitation to hearing. On 21 August 2014 an officer of the Tribunal again wrote to the applicant for the purpose of confirming receipt of the invitation to hearing. That letter is to be found at page 75 of the Court book. The Tribunal received no response. In those circumstances, the Tribunal decided, pursuant to s.426A of the Migration Act 1958 (Cth) (Act), to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

2. The Tribunal found the applicant provided no substantiation of any kind for his claims, and that the claims, therefore, were “no more than simple assertions”. The Tribunal found that the only material before it for consideration were the brief claims outlined in the applicant’s application for a Protection visa.  The Tribunal in particular noted the following:

   a)the applicant did not provide “documentary evidence” in support of his marriage and divorce;

   b)the applicant’s account of his background circumstances in India was “notably brief and vague and the applicant failed to provide information such as the name of his alleged ex-wife, when or where he was married to her, the composition and location of her family, the nature of the influence they are said to wield or why it is that they could prevent the police giving him protection.”

   c)the applicant did not provide any “identifying details” of his former brother-in-law.

   d)the applicant gave no details or explained why the applicant’s former parents-in-law would wish to commit a “major criminal act” by killing the applicant.

   e)The applicant gave no explanation why he delayed for 18 months after his divorce which took place in May 2012 before he applied for a Protection visa. 

3. The Tribunal considered that if the applicant had a genuine cause to fear being killed if he were to return to India as claimed, he would have been capable of providing further detail of the information of the events identified in his application as these events would have been “dramatic and memorable developments in his life”. While the Tribunal noted that no adverse inference can be made from the applicant’s decision not to attend a hearing before the Tribunal, it found the applicant’s failure to do so meant that the only material before the Tribunal for consideration was the information detailed in the applicant’s application for a Protection visa. In those circumstances, the Tribunal was not satisfied that the material before it provided a sufficient basis to find that the applicant is a person in respect of whom Australia has protection obligations either under s.36(2)(a) or s.36(2)(aa) of the Act.

4. I then turn to the grounds of the application contained in the application the applicant had filed. 

Grounds of application

1. The applicant’s application for review contains three grounds.  The first is:

   The Second Respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal. On account of the mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty. By consequences Tribunal decision is not a decision at all in law.

2. At least part of this ground appears to be claiming that the Tribunal was not entitled to proceed on the assumption that the applicant had been provided with the invitation the Tribunal sent by email on 18 August 2014. Whether or not the Tribunal was entitled to so proceed depends on whether the Tribunal complied with the provisions of the Migration Act which govern the methods by which the Tribunal may serve documents on an applicant. The starting point is s.425A(1) of the Act, which provides that:

   If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

3. Subsection 425A(2) of the Act provides that, unless the applicant is in immigration detention, the information that must be given under s.425A must be given by one of the methods specified in s.441A of the Act. One of the methods permitted by s.441A of the Act is that provided for in s.441A(5)(b), namely by email to the last email address provided to the Tribunal by the recipient in connection with the review. Paragraph 426A(1)(a) of the Act provides that, if an applicant is invited under s.425 of the Act to appear before the Tribunal but the applicant does not appear on the day on which or at the day and place at which the applicant is scheduled to appear, the Tribunal may, by written statement under s.430 of the Act, make a decision on the review without taking any further action to allow or enable the applicant to appear before it

4. The Tribunal sent its letter dated 18 August 2014 inviting the applicant to appear to an email address.  The email address is that which the applicant specified in his application in that part of the application for review headed “Part C Where Do You Want Us to Send Correspondence About Application” and under the heading “Email Address”. Having sent the letter according to one of the means permitted by the Act, in this case email, it was open to the Tribunal to proceed under s.426A(1)(a) of the Act. There is nothing on the material before me that could raise an arguable case that the Tribunal acted unreasonably in so deciding.

5. The ground refers to a “mistake of the third party”.  When I asked the applicant whether he could tell me what those words were reference to, the applicant, who I should have mentioned earlier is not legally represented, said he could not tell me, by which I mean he was unable to tell me.  The applicant otherwise made no submissions in relation to the first ground.  In my opinion, the applicant would have no reasonably arguable prospects of succeeding on ground 1 if I were to set aside the orders I made on 1 December 2015. 

6. I then move to the second ground stated in the application which is as follows:

   My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A.

7. This essentially raises the same issues as ground 1. It assumes the Tribunal was obliged to make further inquiries. Subsection 426A(1) of the Act as it stood at the relevant time provided that if an applicant is invited under s.425 to appear before the Tribunal but does not do so on the day on which or at the time and place at which the applicant is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant’s appearance before it. It follows the Tribunal was not obliged to make any further inquiry of the applicant.

8. Mr Hutton, who appeared for the Minister, drew my attention to the decision of North J in AZAFB v Minister for Immigration and Border Protection[2] in which his Honour in the circumstances of that case held the Tribunal acted unreasonably in exercising the power under s.426A without making any further attempt to contact the applicant. Mr Hutton submits – and in my opinion correctly submits – that the facts in AZAFB are distinguishable from the facts as they are before me.  And in my view, there is no reasonable arguable case for suggesting that the facts in AZAFB are analogous to the facts in this case. 

   [2] AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383

9. In the case before me, the Tribunal attempted to contact the applicant on two occasions in which it sought to ascertain the applicant’s intentions concerning his appearing before the Tribunal in response to the invitation the Tribunal issued.  As I noted above, that attempt was made by telephone and by the sending of a letter.  In my opinion, therefore, the applicant would have no reasonably arguable prospects of succeeding on ground 2 if I were to set aside the orders I made on 1 December 2015.  I should add that the applicant, although invited to do so, made no submission in relation to ground 2.

10. The third ground is as follows:

    Unfairness was involved in the failure of the Tribunal to send further communication to substantiate my claim of Refugee status and therefore there was a denial of natural justice.

11. Whether or not the Tribunal’s decision pursuant to s.426A of the Act to proceed to determine the application without taking any further action to allow or enable the applicant’s appearance was unfair by itself is not a matter which determines whether the Tribunal was entitled to do so in the circumstances of this case. The relevant criterion which marks the boundary of the Tribunal’s exercise of that power is legal reasonableness. There is nothing in the material before me that shows the applicant would have reasonable prospects of successfully claiming that the Tribunal acted unreasonably in exercising the power conferred by s.426A of the Act to proceed to determine the application without taking any further action to allow or enable the applicant’s appearance.

1. The applicant, in an affidavit made on 6 October 2014 which he filed with his application, contains the following submission:

   The Tribunal has failed to investigate of my claims, specially the grounds of persecution in India.

2. The applicant would have no reasonable prospects of succeeding on such a ground. The Tribunal has no general duty to investigate matters that are raised by an applicant for review.  At the most, the Tribunal has a duty to inquire about a critical fact, the existence of which may be easily ascertained.[3]  There is nothing in the material before me that shows the applicant would have reasonable prospects of showing there were one or more alleged facts before the Tribunal whose existence could have been easily ascertained but about which the Tribunal failed to make an inquiry. 

   [3] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 83 ALJR 1123 at 25-26

3. Mr Hutton read the sentence from this affidavit as potentially making a wider claim, namely a claim that the Tribunal failed to consider the applicant’s claims.  If that is the intended meaning of the claim, it would have no reasonable prospects of succeeding.  As I have already noted, the Tribunal examined the material that was before it and not only identified its sparseness but also the information that it would have been reasonable for the applicant to have provided to the Tribunal.  The Tribunal’s conclusion that the material was sparse and was incapable of supporting the applicant’s claims for protection was a view that was reasonably open to the Tribunal for the reasons it gave. 

4. By way of conclusion, I am not satisfied the applicant has given a reasonable explanation for not having appeared at the scheduled hearing of 1 December 2015, nor am I satisfied there is a reasonable explanation for the applicant’s delay in applying to set aside the orders I made on 1 December 2015.  These matters would not have been determinative of the manner in which I would exercise my discretion if I were to be satisfied that the applicant would have reasonable prospects of succeeding on the grounds set out in his application.  This to me is the most significant factor.  However, for the reasons I have given, I am of the opinion that the applicant has no reasonable prospects of succeeding on any of the grounds stated in his application or the grounds stated in his affidavit if I were to make an order setting aside my orders of 1 December 2015.  In those circumstances, I propose to order that the application be dismissed.

5. In addition to seeking an order that I set aside my orders of 1 December 2015, the applicant in his application in the case seeks an order that “no action is taken to remove the applicant from Australia while the decision is pending.”  The applicant submits I should make that order because he fears for his life if he returns to India.  I do not propose to make the order sought. First, I have already given my decision in relation to his application that the orders made on 1 December 2015 be set aside.  Second, the claim is premised on this Court making a finding that the applicant has grounds for fearing harm in India.  That is not a ground upon which this Court can grant an injunction preventing the Minister from removing the applicant from Australia. Further, there’s nothing by way of evidence before me to indicate that there is any imminent threat of the applicant being removed from Australia. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 3 August 2016