SZVXC v Minister for Immigration

[2015] FCCA 2544

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2544

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:

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

Cases cited:
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Siskina (Owners of Cargo Lately Laden on Board) v Distos Compania Naviera SA [1979] AC 210

Applicant: SZVXC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3599 of 2014

Judgment of: Judge Manousaridis

Hearing date: 16 September 2015

Delivered at: Sydney

Delivered on: 17 September 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Mr A Markus of Australian Government Solicitor

ORDERS

1. The application in a case filed on 15 September 2015 is dismissed.

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

3. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3599 of 2014

SZVXC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is in immigration detention, seeks an order under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) to set aside the order a Registrar of this Court made on 19 March 2015 to dismiss the application the applicant filed on 23 December 2014. By that application, the applicant sought constitutional writs directed to the first respondent (Minister) and Refugee Review Tribunal (Tribunal) in relation to a decision the Tribunal made on 26 November 2014 affirming the decision of a delegate of the Minister not to grant the applicant a Protection visa. The Registrar dismissed the application pursuant to r.13.03C(1)(c) of the FCC Rules because the application was listed on that day for a First Court Date but there was no appearance on behalf of or by the applicant.

2. In addition, the applicant applies for an interlocutory injunction to restrain the Minister from removing the applicant from Australia. Arrangements have been made for the applicant to be removed from Australia in the evening of 18 September 2015. The question of whether or not I should grant an injunction will only arise if I decide to set aside the Registrar’s orders. If I do not decide to set aside the Registrar’s orders, the applicant will have on foot no application for final relief in aid of which this Court could grant an interlocutory injunction.[1]

   [1] The Court “has no power to grant an interlocutory injunction except in protection or assertion of some legal or equitable right which it has jurisdiction to enforce by final judgment.” - Siskina (Owners of Cargo Lately Laden on Board) v Distos Compania Naviera SA [1979] AC 210 at 256 (Lord Diplock)

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:[2]

   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.

   [2] [2010] FCA 530 at [7]

Explanation for non-appearance

1. The applicant has filed an affidavit in which he deposed that he was “unaware of my previous court hearing(s)”, and that he was “also unaware that my previous lawyers did not attend the court hearing(s) and that resulted the dismissal”. I do not accept this part of the applicant’s evidence. First, the applicant gave evidence in cross-examination that he did not retain lawyers, and that his friends assisted him or prepared the application for him. Thus, the applicant’s not having appeared on 19 March 2015 cannot be attributed to lawyers not informing the applicant of the First Court Date. Second, given that the application was prepared by friends of the applicant, the probabilities are that his friends would have assisted the applicant to file the application and would also have informed the applicant after the application was filed that the Court had listed the matter for a First Court Date at 2 pm on 19 March 2015.

2. The applicant also deposed that he is barely literate, and it was hard, therefore, for him to understand documents in his “mother language let alone foreign legal documents”. Whether or not it is accurate to characterise the applicant as barely literate, the applicant in cross-examination said that friends prepared the application for him. The probabilities are the friend or friends that assisted the applicant were available to assist him by informing him of the day on which the application had been listed for a First Court Date.

3. I am not satisfied, therefore, that the applicant has provided an adequate explanation for his not appearing before the Court on 19 March 2015. This consideration, however, would ordinarily not be of great significance if the application, if reinstated, would have reasonable prospects of success.

Reasonably arguable prospect of success?

1. In his application for a Protection visa, the applicant, who is a national of Bangladesh, claimed to fear harm because he is a supporter of the Bangladesh Nationalist Party (BNP). The applicant said he has been in Australia for more than a decade and that, due to criminal elements within the Awami League, the applicant would be perceived as wealthy and he would be abducted and be the subject of extortion.

2. The Tribunal was not satisfied the applicant was a credible witness. First, the applicant had previously applied for a Protection visa in 1999 on grounds that were inconsistent with the claims he made before the Tribunal. For example, the applicant had previously claimed fear of persecution because he was a Jatio Party member and supporter. Second, the applicant’s evidence in relation to his involvement with the BNP was so inconsistent and unpersuasive that the Tribunal could not accept the applicant was ever a member of the BNP. Third, the applicant gave inconsistent and confused evidence about why he left Bangladesh in 1999. Fourth, the applicant’s evidence about whether he had been harmed in Bangladesh was inconsistent. Fifth, although in his application for a Protection visa the applicant claimed that criminal elements may perceive him to be a person of wealth, the applicant denied such fears, but stated that he just fears harm from the Awami League. Sixth, the applicant’s claimed involvement in Australian politics was vague and inconsistent. Seventh, the Tribunal was not satisfied the applicant was truthful in relation to his background in Bangladesh.

3. The application the applicant filed with the Court contains two grounds. These are “Law Error” and “Over looked real Claim”. By themselves, these grounds do not disclose any arguable ground of jurisdictional error. The first ground does not identify the legal error it is alleged the Tribunal made; and the second ground is not arguable because the Tribunal’s reasons for decision show the Tribunal considered, but rejected, the applicant’s claims for protection.

4. The applicant, who is unrepresented, made no submissions in relation to these grounds. He did say he would have a lot of problems if he returns to Bangladesh. He also said he had a number of health problems. These matters, however, do not disclose any arguable grounds of jurisdictional error.

5. There is nothing in the reasons for decision of the Tribunal that could reasonably suggest the Tribunal made any jurisdictional error. It was reasonably open to the Tribunal not to accept the applicant to be a witness of truth for the reasons it gave, and not to accept the applicant’s claims for protection for that reason.

Conclusions and disposition

1. The applicant has not provided a reasonable explanation for his not attending the First Court Date on 19 March 2015; and the applicant would not have any reasonable prospects of successfully prosecuting his application if I were to reinstate it.

2. I propose, therefore, to dismiss the application in the case, and order that the applicant pay the Minister’s costs. I also propose to order that the Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 17 September 2015