SZVZM v Minister for Immigration

[2016] FCCA 2353

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2353

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE AND PROCEDURE – Reinstatement – whether orders made in the absence of the applicant should be set aside – whether the applicant’s explanation for non-appearance was satisfactory – whether the prospects of success are sufficient such that it is necessary in the interests of justice to reinstate proceeding – application refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 425, 426A, 476, 477.

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05.

Cases cited:

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26.

Spencer v The Commonwealth of Australia (2010) 241 CLR 118.

Applicant: SZVZM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 99 of 2015

Judgment of: Judge Street

Hearing date: 8 September 2016

Date of Last Submission: 8 September 2016

Delivered at: Sydney

Delivered on: 8 September 2016

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Firmstone & Associates

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with.

2. Leave to the Applicant to file the amended application dated 7 September 2016 and the need to file the document electronically is dispensed with.

3. The application in a case is dismissed.

4. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 99 of 2015

SZVZM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 August 2013, affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Lebanon. The applicant had travelled to Australia on 15 April 2006 on a Lebanese passport as the holder of a (Class TR) Tourist visa. The applicant departed Australia on 15 September 2006. The applicant then travelled to Australia again on 16 April 2012, on the same Lebanese passport, as the holder of another (Class TR) Tourist visa. The applicant has not since departed Australia.

3. The applicant is a Sunni Muslim who claimed to fear persecution from pro-Syrian forces and Alawis in Lebanon due to her religion. The application to this Court was filed approximately 15 months outside the time limit prescribed by s.477(1) of the Act. Accordingly, the applicant requires an extension of time in relation to her substantive application. On 2 April 2015, the applicant failed to appear at the return date of her substantive application and a Registrar of the Court dismissed her application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

4. On 3 May 2016, the applicant filed an Application in a Case seeking to set aside the default orders made on 2 April 2015, pursuant to r.16.05 of the Rules. That application is supported by an affidavit sworn by the applicant, which contained the applicant’s explanation for the failure to appear. That affidavit asserts the applicant’s ignorance of the return date, and in relation to s.477 of the Act, the applicant’s pursuit of Ministerial Intervention by her legal representatives currently acting for her in relation to the Application in a Case.

5. The applicant’s affidavit did not, in any way, deal with or explain why the applicant had not appreciated that return date as it was inserted on the front page of her substantive application. Nor does it deal with the correspondence sent by the solicitor for the first respondent, foreshadowing that her application may be dismissed if the she failed to appear. It is sufficed to say that the applicant’s explanation for the failure to appear is less than satisfactory.

6. As to s.477 of the Act, where an applicant elects to pursue Ministerial Intervention, it is contrary to the public interests in ensuring the finality of litigation to extend time on that ground. Be that as it may, the more significant issue is the merits of the substantive application. In that regard, the grounds of the amended application are as follows:

   “1. The Tribunal made a jurisdictional error by failing to put information to the Applicant in accordance with s 424A and/or s 424AA of the Migration Act 1958 (Cth).

   Particulars

   a. The Tribunal at paragraph 23 of its decision stated that the Applicant's failure to attend a departmental interview and a Tribunal hearing “in itself” caused the Tribunal to doubt the Applicant's claims.

   b. The Applicant's failure to attend was information within the meaning of s 424A and/or s 424AA of the Migration Act as by its terms it undermined the Applicant's claims, instead of being the Tribunal's thought processes or reasoning upon information.

   c. The information, at the relevant time, formed part of the reason for the Tribunal's decision;

   d. The information was not exempted by s 424A(3) of the Migration Act as it was not given by the Applicant within the meaning of s 424A(3)(b) and s 424A(3)(ba) of the Migration Act.”

7. In its decision record, the Tribunal identified the applicant’s claims on the material available before it. The Tribunal also referred to the applicant’s failure to appear at the original departmental interview. The Tribunal further noted that the applicant had been invited to attend a hearing before the Tribunal, which she had failed to appear. Paragraph 23 of the Tribunal’s decision record is as follows:

   “23. The applicant failed to attend a departmental interview or attend the Tribunal hearing to which she was invited. This in itself causes the Tribunal to doubt whether the applicant's claims are genuine. It also means that as she has failed to take the opportunity to attend the hearing and give evidence in person, the Tribunal has been unable to obtain more details about her claims and in particular about her fears of future harm if she were to return to Lebanon.”

8. After referring to the history of the matter, the Tribunal then turned to assess the applicant’s claims. In relation to the applicant’s claim of facing harm due to her Sunni religion and anti-Syrian political opinion, the Tribunal did not accept that merely being a Sunni Muslim or someone who opposes President al-Assad of Syria is sufficient for the applicant to face a real chance of persecution at the hands of Alawis, Shia Muslims, people who support President al-Assad of Syria, or anybody else.

9. The Tribunal then turned to consider the issue of the applicant being a single woman. The Tribunal was not satisfied that the applicant cannot live with relatives in Lebanon. The Tribunal was not satisfied that the applicant will face a real chance of persecution as a woman, a single woman, a widow, or a woman without male protection. 

10. The Tribunal then turned to the issue of complementary protection and found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that she would suffer significant harm as defined in the Act.

11. The Tribunal also was not satisfied that the authorities in Lebanon would be unwilling or unable to protect the applicant, who is from the north of Lebanon. In the circumstances, the Tribunal concluded that the applicant did not satisfy the criteria under s.36(2) of the Act.

12. Counsel for the applicant, Mr Jones, skilfully sought to argue that the reference by the Tribunal to the failure by the applicant to appear at the departmental interview or at the Tribunal hearing was information that enlivened an obligation under s.424A of the Act. Mr Jones took the Court in detail to paragraph 23 of the Tribunal’s decision record and contended that the reasoning of the Tribunal disclosed that the Tribunal had treated the failure by the applicant to appear before the Tribunal and at the departmental interview, as if it were information which by its terms, contained a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection applications.

13. Section 424A of the Act provides as follows:

    “Information and invitation given in writing by Tribunal

    (1) Subject to subsections (2A) and (3), the Tribunal must:

    (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c) invite the applicant to comment on or respond to it.

    (2) The information and invitation must be given to the applicant:

    (a) except where paragraph (b) applies--by one of the methods specified in section 441A; or

    (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

    (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

    (3) This section does not apply to information:

    (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b) that the applicant gave for the purpose of the application for review; or

    (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

    (c) that is non-disclosable information.

    (4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”

14. Mr Jones properly drew the Court’s attention to SZBYR & Minister for Immigration and Citizenship [2007] HCA 26, relevantly, at [17] and [18]. Mr Jones submitted that the failure of the applicant to attend the departmental interview and the Tribunal hearing was information enlivening the obligation under s.424A of the Act, and was not, in the present case, information that reflected the existence of doubts, inconsistencies or the absence of evidence.

15. Mr Jones skilfully developed the argument that the second sentence of paragraph 23 of the Tribunal’s decision record reflected that the Tribunal had treated the failure by the applicant to attend the departmental interview and the Tribunal hearing as information that triggers the obligation under s.424A of the Act.

16. Under the statutory regime, the Tribunal was required to invite the applicant to appear before it pursuant to s.425 of the Act. Under s.426A of the Act, where the applicant fails to appear before the Tribunal, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it. Mr Jones submitted that ss.424A and 426A should be read in a complementary fashion. Mr Jones further submitted that in the present case, the applicant’s failure to attend the departmental interview and the Tribunal hearing was information enlivening the obligation under s.424A.

17. Mr Jones submitted that the present case would not give rise to the proposition that, in every case where an applicant failed to appear before the Tribunal, an obligation under s.424A of the Act would arise. Mr Jones submitted that this is so because in the present case, part of the information was the failure to appear at the departmental interview.

18. Mr Jones also drew attention to the applicant’s explanation for the delay in relation to the filing of the substantive application in this Court. Mr Jones submitted that the critical issues were the merits of the substantive application.

19. Whilst the applicant did proffer an explanation for the delay in relation to the filing of proceedings in this Court and her failure to appear at the return date, I accept the first respondent’s submission that the explanation is totally unsatisfactory. I take into account the principles and caution in Spencer v The Commonwealth (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I accept the first respondent’s submissions that the alleged information in the present case is information squarely falling within [18] of SZBYR, supra.

20. The first respondent also drew the Court’s attention to [27] to [29] and [49] of SZBYR, supra. I do not accept that the information referred to in the amended application was information enlivening any obligation under s.424A of the Act. I do not regard the amended application as disclosing a reasonably arguable ground of jurisdictional error that would give rise to any utility in setting aside the orders made by the Registrar on 2 April 2015. I am not satisfied that there is a sufficient arguable case to warrant an extension of time under s.477 of the Act. I am not satisfied that the interests of the administration of justice warrant the setting aside of the orders made by the Registrar on 2 April 2015.

21. For the reason given, the amended application fails to identify a sufficiently arguable case on the merits to warrant the making of an order under r.16.05 of the Rules. Further, taking into account the unsatisfactory explanations for the delay in the filing of the original application and the applicant’s absence at the return date, this is a case where the delay in itself, would warrant the refusal of the application to set aside the orders made by the Registrar on 2 April 2015.

22. The Application in a Case is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 November 2016