FEDERAL COURT OF AUSTRALIA

MZZVW v Minister for Immigration and Border Protection [2015] FCA 128

THE COURT ORDERS THAT:

1.    The application by the applicant for an adjournment be refused.

2.    The application for leave to appeal be dismissed.

3.    The applicant pay the costs of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    The applicant seeks leave to appeal against an order of the Federal Circuit Court of Australia (FCCA) in which the applicant’s application for review was dismissed for reason of his non-attendance at the hearing pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth): MZZVW v Minister for Immigration [2014] FCCA 2386 (FCCA reasons). The dismissal followed consideration and refusal of a written application by the applicant for adjournment of the hearing.

2    Pursuant to orders made on 5 November 2014, this matter was to be listed for final hearing and parties were advised of the hearing date on 8 December 2014.

3    On 23 February 2015 (two days before the hearing), the applicant’s housing case worker sent a letter to this Court which outlined that the applicant requested an adjournment of the hearing due to ongoing physical and mental health issues. This letter was accompanied with letters from a physiotherapist, a podiatrist and a psychologist which outlined these health issues.

4    On 24 February 2015, and on the morning of the hearing, the case worker corresponded with my Associate and said that the applicant was unable to attend the hearing due to his ongoing health problems. The case worker was informed that the applicant would have to attend in-person if he wished to make an application for adjournment.

5    The applicant did not attend the hearing. The first respondent (Minister) opposed the applicant’s application for adjournment and made the following submissions, which I accept:

(a)    the material provided through the case worker did not disclose why the applicant would be prevented from participating in the hearing as a result of his medical conditions;

(b)    the request for adjournment was open-ended and did not specify the period sought for adjournment;

(c)    there was no reason advanced by the applicant to explain why it took until 23 February 2015 for the request for adjournment to be made; the applicant experienced ongoing mental health issues as early as 2013 and suffered from foot pain since October 2014, and the matter was allocated a hearing date on 8 December 2014;

(d)    it was questionable whether granting an adjournment would lead to him participating in the hearing; he had sought adjournment (on three occasions) in the FCCA proceedings, and failed to attend that hearing, and had been given opportunity during those proceedings and in these proceedings to provide submissions in support of his application, but failed to do so on both occasions.

Furthermore, the applicant filed an application for leave to appeal which, for reasons I will explain, was without merit.

6    For these reasons, I dismiss the applicant’s application for adjournment.

7    I will now turn to the application for leave to appeal. The order of the FCCA is interlocutory. Accordingly, leave to appeal is required: Federal Court of Australia Act 1976 (Cth) s 24(1A).

8    Leave to appeal should be granted if it appears that some error may have been made in the court below which, if not corrected, may lead to substantial injustice: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9. An important consideration is the applicant’s prospects of successfully prosecuting an appeal should leave be granted: Bedi v Minister for Immigration and Border Protection [2014] FCA 1197 at [19].

Dismissal for want of appearance

9    The application is supported by the applicant’s affidavit. The applicant contends that rather than dismiss his application for review by reason of his non-attendance the FCCA should have proceeded to consider his application on its merits in his absence. There was, he says, sufficient information provided by him to permit the FCCA to examine the decision of the Refugee Review Tribunal (Tribunal) and decide “whether credibility was the main issue in these proceedings and whether there was a duty to inquire on the part of the [T]ribunal”.

10    The proceedings before the FCCA had twice previously been adjourned (FCCA reasons, at [12]). The applicant sought an adjournment for a further two months. The FCCA was not satisfied on the evidence presented by the applicant that he was “so medically unwell as to be unable to attend the hearing, either in person or by telephone” (at [15]). The evidence was summarised at [14]:

(a)    a facsimile to the Court from a case worker indicating that the applicant was suffering physical and psychological distress and “feels he is unable to deal with the stress of representing himself before the court in person or by telephone”, and indicating that he had been unable to organise a lawyer because of his ongoing physical and mental health condition;

(b)    correspondence from the applicant’s treating psychologist which was “in similar vein to that provided to the Tribunal”;

(c)    correspondence from Baptcare and a letter from Dr Hossam Darwish, “which made no reference to any mental health difficulty”; and

(d)    earlier medical correspondence from Dr Darwish, which “had been used on an earlier occasion to obtain an adjournment and indicated that, from that date [4 September 2014], the applicant required three days until recovery from his various illnesses”.

11    On the morning of the hearing the FCCA contacted the applicant by telephone and invited him to appear by telephone if he wished. The applicant declined (at [14]).

12    In part, the applicant claimed that he required an adjournment to obtain legal representation. Her Honour noted that the applicant had had 11 months to obtain legal representation, and had been provided with relevant information to assist him to do so by the solicitors representing the Minister (at [11] and [15]).

13    Her Honour concluded (at [15]):

[t]he Court has no confidence that the Applicant intends to proceed with his application at any time in the reasonably foreseeable future.

14    I accept the Minister’s submission that, having considered all of the circumstances and the applicant’s evidence, her Honour was entitled to form the view that she did regarding the applicant’s intention to proceed with the review, and having formed that view, to refuse the application for the adjournment.

15    Furthermore, and as the Minister submits, the FCCA had no obligation to consider the merits of the application for review. The applicant had been advised by the solicitors for the Minister that the Minister reserved the right to seek orders of dismissal if the applicant did not appear. In these circumstances it was available to the FCCA to dismiss the application for want of appearance.

16    No demonstrable error has been established. The exercise of the discretion by the FCCA to dismiss the application under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) was not unreasonable.

The merits of the proposed appeal

17    I have, in any event, concluded that there is no merit in the grounds that the applicant would apparently rely upon if the application for leave were allowed.

18    The following background and the procedural history in the Tribunal, which is uncontroversial, is taken from the written submissions of the Minister.

19    The applicant is from Lahore in Pakistan. On 20 March 2010 he arrived in Australia on a Temporary Business Entry (Short Stay) (Subclass 456) visa. On 3 May 2011, he first applied for a protection (Class XA) visa. On 1 July 2011, the application was deemed invalid as it did not meet the requirements of s 46(2A) of the Migration Act 1958 (Act) because the applicant had failed to provide personal identifiers. On 28 July 2011, the applicant made a valid visa application.

Claims for a protection visa:

20    The applicant claimed to fear harm from the Taliban because of his work in assisting a school in Lahore. He provided the following details in his statement:

(1)    He worked with his brother in a business importing lighting accessories and equipment from China;

(2)    On 14 December 2000, he moved to Hong Kong and started his own business. The culture of Hong Kong had a great impact on him, particularly its education system;

(3)    On returning to Pakistan he helped open a computer lab in a private school, the British School System;

(4)    After becoming involved with the school, he started speaking out against the Taliban and their followers for “destroying the future of their children”;

(5)    On 7 December 2009, he gave statements to a local newspaper about these matters and published posters that “parents should send their children to school not to make money”;

(6)    As a result of these activities, the Taliban came after him and threatened to kill him if he did not stop speaking out against them. On 16 December 2009, he received a phone call from the Taliban threatening to kill him. They also contacted his family and threatened to kill them;

(7)    On 10 January 2010, he went with a friend to Peco Chowk where they were attacked and shot at by “[f]ive long bearded militants with covered faces”. He complained to the police but they initially refused to take down a written report;

(8)    Some days later, he was called by an unknown person and warned the attack was to make him realise he would be killed if he did not stop speaking out. However, he kept going with his work with the school;

(9)    On 4 March 2010, his house came under fire and his mother was shot in the leg by, according to neighbours, men wearing commando jackets and turbans;

(10)    On 1 June 2010, after the applicant arrived in Australia his brother was shot at while taking money from an ATM and his family was threatened.

21    On 6 March 2012, a delegate of the Minister refused to grant the applicant a visa. On 16 March 2012, the applicant applied to the Tribunal for review of the delegate’s decision.

Obtaining information regarding applicant’s claims

22    During the Tribunal hearing, the Tribunal put information to the applicant, pursuant to s 424AA of the Act that Australian Government officials in Pakistan had contacted Al-Akhbar newspaper to authenticate five newspaper articles submitted by the applicant, but the newspaper had failed to respond. The officials had then visited the National Library of Pakistan and studied the relevant editions of Al-Akhbar and found that the articles submitted by the applicant did not appear in those editions. The applicant elected to respond immediately and denied fabricating the evidence and then indicated he was mentally stressed and on medication. The Tribunal then adjourned the hearing to allow the applicant to confer with his agent. Upon resumption the applicant claimed different versions of the newspaper appeared in different cities. The Tribunal agreed to provide the applicant a further four weeks to obtain additional information from Pakistan and respond in writing to its concerns.

23    The Tribunal did not call evidence from the witnesses proposed by the applicant on the basis that their evidence would not overcome the credibility concerns it had raised pursuant to s 424AA of the Act. The Tribunal cited in support the decision of SZRGT v Minister for Immigration [2012] FMCA 948, per Barnes FM at [24]-[27].

24    On 22 August 2013, the applicant’s agent emailed the Tribunal informing it that the applicant was still seeking Peshawar and Islamabad editions of newspapers requested by the Tribunal at the hearing. On 5 September 2013, the agent again emailed the Tribunal stating that the applicant had informed him that the certified copies of the requested newspaper articles were being sent to him. However, on 25 September 2013 the agent emailed the Tribunal saying that he had been unable to contact the applicant to determine the whereabouts of the requested documents or the likelihood of them reaching Australia.

Tribunal’s decision

25    On 22 October 2013, the Tribunal affirmed the delegate’s decision. The Tribunal did not accept that any of the claims the applicant had advanced were true and therefore was not satisfied the applicant had a well-founded fear of persecution in Pakistan, although it accepted that he may be suffering from depression. Further, given those findings of fact in relation to his claims, it was not satisfied that there were substantial grounds for believing that he faced a real risk of suffering significant harm.

26    The Tribunal gave the following reasons for its findings:

(a)    The applicant was not a credible witness and the Tribunal found he had fabricated his protection claims;

(b)    The applicant had failed to raise any protection claims in a timely manner and the Tribunal drew an adverse inference from that delay;

(c)    The articles claimed by the applicant to have appeared in the Al-Akhbar newspaper were not published in that newspaper as claimed and the applicant’s response to the concerns of the Tribunal in this regard did not alter its view;

(d)    Further, the applicant’s explanation that different versions of the newspaper appeared in Peshawar or Islamabad made no sense;

(e)    The evidence the applicant relied upon – namely the news articles – were at odds with his other claims that the Pakistan media were too fearful of the Taliban to report anything critical of them and the police were corrupt and ineffectual;

(f)    The leaflet provided by the applicant to the Tribunal was self-serving and at odds with other aspects of the applicant’s evidence;

(g)    Bearing in mind country information about the ability to procure false documents in Pakistan, the Tribunal did not accept that any of the documents provided by the applicant were genuine.

Proposed grounds of appeal

27    No draft notice of appeal has been filed. As appears from his affidavit, in the most general terms the applicant’s complaint concerns the failure by the Tribunal to make further inquiries as to his claims. A failure to make inquiries was an aspect of the applicant’s grounds of review before the FCCA.

28    Credibility findings are central to the function of the decision-maker: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 at [67]. There is no basis to support a finding that in performing this task the Tribunal committed any jurisdictional error.

29    Furthermore, it is well established that there is no general duty upon the Tribunal to make inquiries; rather, it is for the applicant to make out his case before the Tribunal. If the Tribunal cannot be satisfied on the basis of the material presented that his claims are genuine it does not have any duty to make further inquiries: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [43] per Gleeson CJ, Gummow and Hayne JJ; cf Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60]-[67], SZJBA v Minister for Immigration and Citizenship (2007) 164 FCR 14 at [46].

30    In any event, the Tribunal did make inquiries of Australian Government officials in Pakistan who unsuccessfully sought information directly from the relevant newspaper and then obtained information by undertaking research at the National Library of Pakistan.

31    The result of those inquiries did not favour the applicant. He was put on notice as to this and was afforded a further opportunity to put further information to the Tribunal in support of his claim.

32    The applicant’s argument that the articles were published in a different edition of the newspaper is not supported by any evidence. He had the opportunity to obtain any such articles but none were forthcoming. I accept the Minister’s submission that, together, the result of the inquiries made by the Tribunal and the absence of any evidence from the applicant indicates, at least, that the information regarding the alternative version of the articles was not readily available, but also fails to establish that the information is available at all.

33    The Tribunal made inquiries regarding the newspaper articles and was unable to find information to verify the authenticity of them. There was no error in the Tribunal not making a “greater effort”.

34    No jurisdictional error has been established.

35    This is not a case where the provenance of the articles provided by the applicant were easily ascertained such that there was a failure by the Tribunal to make an inquiry about a critical fact. The Tribunal had already made inquiries, through officials of the Australian Government, with the relevant newspaper and the National Library of Pakistan. There was nothing to indicate that any further inquiry by the Tribunal would have yielded a useful result: Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25]-[26]; see also SZOER v Minister for Immigration and Citizenship [2010] FCA 1100 at [28]-[40]. The Tribunal appropriately put this information to the applicant during the hearing pursuant to s 424AA of the Act and afforded him sufficient time to obtain corroborating evidence of his claims. It was, in these circumstances, for the applicant to put on evidence to establish that the documents he provided were genuine.

36    For these reasons I am of the opinion that the proposed appeal has no merit.

Conclusion

37    The application for leave to appeal should be refused. The applicant should pay the Minister’s costs.

Associate:

Dated:    2 March 2015