FEDERAL COURT OF AUSTRALIA

SZVEB v Minister for Immigration and Border Protection (No 2) [2015] FCA 1106

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Order 3 made on 13 August 2015 be vacated.

3.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

Introduction

1    On 31 August 2015 the applicant applied for orders to reinstate and consider his application filed in the Court on 7 April 2015 for leave to appeal a judgment of Judge Cameron of the Federal Circuit Court of Australia delivered on 27 March 2015: see SZVEB v Minister for Immigration and Border Protection [2015] FCCA 956 (“SZVEB”).

2    On 13 August 2015, pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), I dismissed the applicant’s application for leave to appeal SZVEB because the applicant did not appear at the time specified for hearing his application: see SZVEB v Minister for Immigration and Border Protection [2015] FCA 847.

3    Under r 35.33(2), the party who was absent may apply to the Court for an order setting aside or varying an order when made under r 35.33(1). Factors relevant to whether an order should be made under r 35.33(2) include whether the absent party has provided an acceptable explanation for that party’s absence at the hearing, and the strength of the applicant’s case: Singh v Minister for Immigration and Border Protection [2015] FCA 223 at [7] per Perry J, citing Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 1573; (2001) 115 FCR 197 at 199 [11] per Katz J (Branson and Mansfield JJ agreeing).

4    In support of his application for reinstatement, the applicant filed an affidavit affirmed on 26 August 2015 in which he said that following his release from the Villawood detention centre in May 2015, he was homeless and he was provided with accommodation by the Australian Multicultural Charity. He said that he was away from that accommodation on the night of 12 August 2015 and due to the fact that he was suffering from severe depression he did not wake up until 5 pm on 13 August 2015. The affidavit stated that it attached a medical certificate, but it did not.

5    The applicant is again detained at the Villawood detention centre. He appeared at a hearing on 24 September 2015 accompanied by Mr Sher Afzal Khan, the chief executive officer of the Australian Multicultural Charity. The applicant submitted that he needed legal assistance and asked for time to obtain it. Mr Khan, who is not a lawyer, indicated that he would assist the applicant in an attempt to obtain legal representation. The proceedings were adjourned until today.

6    On 13 October 2015, the applicant filed submissions which addressed many issues raised in affidavits already filed in these proceedings and it annexed a copy of a medical certificate dated 24 August 2015 from Dr Md Nurul Islam of the Advanced Medical Centre. The medical certificate indicated that the applicant is suffering from depression and forgetfulness and he is on anti-depressant medication while awaiting specialist medical review. Having regard to that evidence, the applicant had an acceptable explanation for his failure to appear on 13 August 2015.

7    For reasons which follow, I determined to dismiss the application for reinstatement under r 35.33(2) because I was not satisfied that the application for leave to appeal the decision SZVEB has merit.

Background

8    The applicant is a male citizen of Pakistan. He arrived in Australia on 29 May 2012. On 30 September 2013, he lodged an application for a Protection (Class XA) visa. On 26 February 2014, a delegate of the Minister refused to grant the visa.

9    The Tribunal’s Statement of Decision and Reasons (“Decision Record”) at [1] records that:

… [The applicant] said that he had left Pakistan to study and to save his life. He said that he feared that he would be harmed by the Government of Pakistan and Sunni Muslims if he returned to Pakistan because he was a Shia Muslim and a member of the MQM (Muttahida Qaumi Movement). He said that he had been in police custody for six months and that he had been tortured by the police. He said that he had been framed for a false murder case. According to the decision under review [the applicant] failed to attend an interview with the primary decision-maker in relation to his application.

Tribunal Decision

10    The applicant sought review of the delegate’s decision in the Refugee Review Tribunal on 19 March 2014. The Tribunal affirmed the delegate’s decision on 3 September 2014.

11    The applicant did not appear at the Tribunal hearing on 1 September 2014. The Tribunal was satisfied that a letter dated 5 August 2014 which invited the applicant to appear before the Tribunal to give evidence and present arguments had been sent to the applicant’s authorised recipient. The letter informed the applicant that the Tribunal may proceed to make a decision if he did not appear. No response was received by the Tribunal. The Tribunal decided to make its decision on the review pursuant to s 426A of the Migration Act 1958 (Cth) without taking any further action to enable the applicant to appear: Decision Record at [3].

12    The Tribunal found that the claims made by the applicant in his application for a protection visa were “a series of bare assertions, lacking in any detail”: Decision Record at [4]. The applicant had not identified specific instances of harm or provided details in relation to his claims that he was framed for a false murder case, that he was detained for six months in police custody or that he was tortured by police. The Tribunal was therefore unable to be satisfied on the evidence of the applicant’s claims or that the applicant would be persecuted for reasons of his religion or his political opinion if he were returned to Pakistan: Decision Record at [4]-[5].

13    For the same reasons, the Tribunal was unable to be satisfied on the evidence before it that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Pakistan, there was a real risk of serious harm: Decision Record at [6]-[8].

14    In the result, the Tribunal was not satisfied on the evidence that the applicant was a person to whom Australia owed a protection obligation.

Federal Circuit Court Decision

15    The applicant applied for judicial review of the Tribunal’s decision by an application filed in the Federal Circuit Court on 26 September 2014.

16    The application was listed for its first court date on 28 October 2014. The applicant appeared in person.

17    The matter was listed for a call-over on 29 January 2015. The applicant did not appear at the call-over. On the application of the Minister, the proceedings were dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth): see SZVEB v Minister for Immigration and Border Protection (No 2) [2015] FCCA 1145.

18    The applicant filed an application in a case on 2 March 2015 seeking an order reinstating the application. The supporting affidavit stated that the applicant was unable to attend the hearing on 29 January 2015 due to his severe depression.

19    The primary judge accepted that the applicant had a satisfactory explanation for his non-attendance at the call-over: SZVEB at [14]. The primary judge proceeded to consider the merits of the application to determine whether to set aside the order dismissing the proceedings.

20    The applicant’s initiating application identified one ground (as written):

the RRT decision is administrative error and miscarriage of justice

21    The primary judge determined on the basis of the applicant’s submissions that the allegation concerned the fact that the Tribunal had proceeded to make a decision without his having the opportunity to provide evidence and present arguments. The primary judge noted that it was apparent that the Tribunal believed that it had complied with the statutory provisions which permitted it to proceed to make a decision in the applicant’s absence, pursuant to s 426A of the Migration Act. The primary judge noted that evidence on those issues was set out in the Court Book and in the affidavit of Ms Maddocks (the Minister’s representative) affirmed on 12 January 2015: SZVEB at [15]. The primary judge was satisfied on the evidence before him that ss 425A and 441A(4) of the Migration Act and reg 4.35D of the Migration Regulations 1994 (Cth) were satisfied in the present case. On that basis, the primary judge was satisfied that the Tribunal had complied with s 426A: SZVEB at [16].

22    Although the primary judge appreciated the grievance felt by the applicant because he did not receive the hearing invitation, he found that it did not invalidate the Tribunal’s decision on the review if the Tribunal observed the statutory and regulatory requirements for the provision of a hearing invitation: SZVEB at [17].

23    Finally, the primary judge considered the applicant’s substantive complaint that the Tribunal’s decision was wrong and held that it could not be made out. The primary judge found that the Tribunal affirmed the decision of the delegate because there was insufficient evidence before it to be satisfied that the applicant met the criteria for the grant of a protection visa. The primary judge held that the Tribunal had no alternative under the Migration Act but to affirm the delegate’s decision where it was unable to reach the necessary state of satisfaction as to the criteria for the grant of a protection visa: SZVEB at [18].

24    In the result, the application in a case was dismissed because, although the applicant had a satisfactory explanation for failing to attend the call-over, the substantive application sought to be made did not have reasonable prospects of success: SZVEB at [19].

Application for leave to appeal to this Court

25    The application for leave to appeal the decision of the primary judge identifies one “Ground of appeal” (as written):

The appellant had no knowledge of the RRT letter of 5 August 2014, to appear before the Tribunal to give evidence in his protection review application therefore it was Administrative error and miscarriage of justice which affected the appellant case.

26    The supporting affidavit filed by the applicant on 7 April 2015 appends a draft notice of appeal. The draft notice of appeal lists 10 “Ground of application”. They are (as written):

1.    [The applicant] appointed Australian Multicultural charity based in Merrylands NSW as a recipient to receive correspondence from Migration Review Tribunal in relation to protection review application.

2.    On 5 August 2014, RRT wrote to [the applicant] for invitation to appear before the Tribunal on 1 September 2014, at 1 pm at level 11, 83 Clarence Street Sydney.

3.    The Multicultural charity did not received the invitation letter from RRT therefore did not advise [the applicant] to appear before the Tribunal on 1 September 2014 before the Tribunal to give evidence and present his arguments relating to the issues arising in the review application.

4.    On 3 September 2014 RRT to [the applicant] to advise that the RRT affirm his decision under review.

5.    The application sought judicial review of the RRT, decision, by application filed on 26 September 2014.

6.    The direction hearing was held on 28 October 2014, before Judge Cameron, the bothy party attend this listing. The application was listed for mention at call over on 29 January 2015, at 2.15.

7.    The application was suffering from severe depression due to his father in law murder in Pakistan therefore application forgot to attend the hearing on 29 January 2015, therefore application was dismissed on 29 January r2015, pursuant to Tule 13.03C(1)© of the Rules, for reason of the applicant unexplained failure to appear on that date.

8.    The applicant filed case in application on 2 March 2015, which was listed for 27 March 2015.

9.    Australian Multicultural Charity CEO Mr Sher Afzal Khan provided affidavit that they did not receive the RRT letter 5 August to appear before the Tribunal on 1 September 2014.

10.    The application was dismissed on 27 March 22015, therefore applicant believe that he have been prejudice due to the letter 5 August 2014, AMC charity did not received therefore AMC did not advise to the application therefore applicant believe that it is miscarriage of justice and leave to appeal may kindly be granted.

27    The applicant’s affidavit filed in support of the application for leave to appeal substantially repeats the matters covered in the draft notice of appeal and the application, as well as aspects of the applicant’s protection claim. At [15] of the affidavit, the applicant claimed that at the hearing on 27 March 2015, he told the judge that he was suffering from severe depression and his mind was numb so that he could not proceed with the application but the primary judge insisted. At [16] of the affidavit, the applicant complains that he asked to be assisted by Mr Khan at the hearing, but that the primary judge had refused the request because Mr Khan is not a lawyer and it was a further miscarriage of justice that he was not represented by a lawyer with the result that his application was dismissed. The applicant re-iterated the complaint at [16] at the hearing today.

28    The primary judge’s judgment is interlocutory in nature. The applicant would therefore require leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth). Leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below, and further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

Consideration

29    The Minister opposes the grant of relief under r 35.33(2) and the grant of leave to appeal on the basis that the substantive appeal lacks merit and has no prospects of success such that there would be no injustice to the applicant in the Court dismissing the application.

30    Like the primary judge, I find entirely understandable the applicant’s sense of grievance that he was not able to avail himself of an opportunity to attend at a hearing with the Tribunal because he did not receive the invitation which the Tribunal says it sent to him by way of the address of his authorised recipient (the Australian Multicultural Charity), and Mr Khan says that it was not received at the Australian Multicultural Charity.

31    However, the primary judge did not err by finding that the Tribunal does not fail to comply with s 425 of the Migration Act if an applicant for a protection visa does not receive an invitation sent to him in accordance with s 441A. Section 425A(2)(a) prescribes that notices will be sent to an applicant who is not in a detention centre by a method specified in s 441A. Section 441A(4) relevantly provides that:

Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:

(a)    within 3 working days (in the place of dispatch) of the date of the document; and

(b)    by prepaid post or by other prepaid means; and

(c)    to:

(i)    to the last address for service provided to the Tribunal by the recipient in connection with the review; or

(ii)    the last residential or business address provided to the Tribunal by the recipient in connection with the review; or

...

32    Where an applicant for a protection visa gives the Tribunal written notice of an authorised recipient of documents, then the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given the applicant: s 441G(1), Migration Act.

33    The primary judge was satisfied that the invitation dated 5 August 2014 was sent within the 3 day period required by s 441A(4) and that the notice period satisfied reg 4.35D of the Migration Regulations. The evidence on which he relied was an affidavit affirmed on 12 January 2015 by Ms Nicole Maddocks, a solicitor employed by DLA Piper Australia, the Minister’s legal representative. Annexure A to the affidavit was a copy of the page of the Postal Dispatch Register maintained by the Migration Review Tribunal and the Refugee Review Tribunal. The Register indicates that a letter which was addressed to Mr Khan at the Australian Multicultural Charity at the same address as given by Mr Khan in affidavits affirmed in these proceedings was taken to the mailing room and placed in the mailing bag by the New South Wales Refugee Review Tribunal team on 6 August 2014. The Register contains certifications that the letters listed on that page of the Register were placed in the mail bag and that the bag was collected by/delivered to Australia Post at 4.57 (presumably pm) on 6 August 2014. In my view the primary judge did not err in accepting that evidence and forming the view that the Tribunal’s actions satisfied the requirements of s 425.

34    I accept the Minister’s submission that s 426A as in force in August-September 2014 was explicit that if the applicant for a protection visa does not attend at a hearing to which he or she has been invited under s 425, then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. In the absence of any communication from the applicant indicating that he was unable to appear for any reason, the Tribunal was entitled to proceed as it did.

35    I note that s 426A was amended in April 2015 by Act 35 of 2015, the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) to confer on an applicant who does not appear at a hearing a right to seek a reinstatement of his or her application within 14 days after the applicant receives a notice of the Tribunal’s decision to dismiss the application. If that right is exercised, the application is taken never to have been dismissed, but if the applicant fails to apply for reinstatement within the 14 day period, the application to dismiss must be reaffirmed. This provision ameliorates the position applicants for protection visas, such as SZVEB, find themselves in when they fail to appear at a scheduled hearing for any reason. However, these provisions were not available to SZVEB.

36    Insofar as the applicant complains that a miscarriage of justice occurred due to the fact that the primary judge proceeded despite his submission concerning his depression and he was not legally represented at the hearing in the Court below on 27 March 2015 and Mr Khan was not allowed to speak for him, I accept the Minister’s submission that no appellable error is revealed. The applicant acknowledges in his affidavit that on 19 March 2015 the primary judge granted an adjournment until 27 March 2015 so that the applicant could engage a lawyer. Mr Khan was allowed to sit with the applicant at the hearing in the Court below and to speak with the applicant, but could not address the Court as he is not a solicitor; that is a conventional approach. The applicant did not supply the primary judge with any evidence of incapacitating illness despite having an opportunity to obtain such evidence in the days between 19 and 27 March 2015 and I have not had the benefit of the transcript of proceedings in the Court below. In these circumstances, it is not open to me to find that any miscarriage of justice occurred as a result of the primary judge deciding to proceed to hear the application on 27 March 2015.

37    In my view the primary judge did not err in declining to reinstate the proceedings for the reasons he gave. The proposed ground of appeal does not identify any appellable error by the primary judge or any jurisdictional error on the part of the Tribunal. It would not be appropriate to grant the applicant leave to appeal.

38    Having concluded that there is no merit in the applicant’s grounds of appeal and that it would be inappropriate to grant leave to appeal, I will dismiss the application for reinstatement of the application for leave to appeal.

39    In accordance with the Minister’s submission, I will vacate order 3 which I made on 13 August 2015 and order that the applicant pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    16 October 2015