FEDERAL COURT OF AUSTRALIA

SZWBK v Minister for Immigration and Border Protection (No 2) [2017] FCA 1130

ORDERS

THE COURT ORDERS THAT:

1.    The appellants’ interlocutory application filed on 31 August 2017 be dismissed.

2.    The first, second and fourth appellants pay the first respondent’s costs of and incidental to the interlocutory application.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

LEE J:

A    background

1    On 4 August 2017 (appeal hearing), I made an order pursuant to FCR 36.75(1)(a)(i) that the appeal in this proceeding be dismissed, and that the first, second and fourth appellants pay the costs of the first respondent (Minister) of the appeal. The appeal I dismissed was from orders and judgment of the Federal Circuit Court made on 10 March 2017, which dismissed the appellants’ application for constitutional writs in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 8 January 2015.

2    In my ex tempore reasons for dismissing the appeal (SZWBK v Minister for Immigration and Border Protection [2017] FCA 1020), I said (at [18]-[19]):

The Minister applies for an order pursuant to FCR 36.75(1)(a)(i) that the appeal be dismissed. In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, Ryan J considered the principles governing an application for reinstatement of a matter dismissed in the absence of a party. At [7], his Honour recognised that where reinstatement is sought, a discretion falls to be exercised by the Court which requires consideration of three factors: first, whether there is a reasonable excuse for the party’s absence; secondly, the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and thirdly, whether the applicant for reinstatement has a reasonable prospect of success on the appeal.

Against the possibility that an application may, at some future time, be made to me pursuant to FCR 36.75(2), as I said in ALG15 v Minister for Immigration and Border Protection [2017] FCA 560 at [13], I do not believe it is either necessary or appropriate that, on the hearing of the Minister’s application, I should descend to forming a concluded and final view as to the underlying merits of the appeal. However, I do think it is relevant for the purposes of considering the question of the dismissal of the appeal that I give some consideration as to whether or not it is evident that the appeal has, on at least a preliminary view, reasonable prospects of success.

3    The possibility I envisaged came to pass, in that on 31 August 2017, an interlocutory application (Application) was filed on behalf of the appellants (who I will describe in this judgment as the applicants) which sought the following substantive orders (uncorrected):

1.    The Application be heard.

2.    The Judgment made in the absence of the Applicants / Appellants on 07 August 2017 and the Orders made / entered pursuant to the Rule 36.75(1)(a)(i) of the Federal Court Rules 2011 be set aside pursuant to the Rule 36.75(2)(a) of the Rules.

3.    Directions be made for the conduct of the appeal pursuant to the Rule 36.75(2)(b) of the Rules.

4.    The matter be listed for final hearing.

5.    The First respondent pay the appellant’s costs.

4    The Application was listed for hearing today, 8 September 2017. Mr Kumar of Counsel appeared on behalf of the applicants. In support of the relief sought in the Application, Mr Kumar relied on the following evidence:

(a)    an affidavit sworn by the first applicant on 28 August 2017 (first applicant’s affidavit);

(b)    an affidavit sworn by the fourth applicant on 7 September 2017 (fourth applicant’s affidavit); and

(c)    pages 257-296 of the appeal book, being the transcript of proceedings before the Tribunal on 17 November 2014.

5    Mr Kumar has also helpfully provided an outline of submissions.

6    The Minister did not rely on any affidavit or other evidence, did not cross-examine either of the deponents, and did provide any written submissions.

B    consideration

7    Mr Kumar accepted, in my view correctly, that the Application falls to be considered by reference to the principles explained by Ryan J in MZYEZ (as referred to in the extract from my earlier judgment identified at paragraph [2] above). It follows that, in the exercise of my discretion, I am required to consider three factors, although Mr Kumar contends that those factors must be looked at both individually and cumulatively. It is convenient that I organise my reasons by reference to these three factors (which I shall refer to as the MZYEZ factors).

Whether there is a reasonable excuse

8    The first applicant’s affidavit, which was not the subject of challenge, deposes to the following facts:

(a)    the first applicant was unable to attend the appeal hearing, as he was “medically unfit”;

(b)    that the first applicant had “severe back pain [sic] few days leading to 04 August 2017, few days [sic] before this date I also developed the back pain and lost focus on 04 August 2017 and seeking an appointment with a doctor and did attend upon a doctor. Thus, did not attend the hearing. I was overwhelmed by these medical problems at that time”;

(c)    that the first applicant was 65 years of age and had been suffering from a back injury after being involved in a motor vehicle accident on 23 October 2016;

(d)    that, after obtaining legal representation, the Application was filed as soon as possible.

9    The first applicant’s affidavit also annexed a copy of a letter from Allianz Australia Insurance Ltd, which enclosed a copy of a report of a specialist, dated 24 April 2017, which provided a “confidential – executive summary” of the first applicant’s condition.

10    The fourth applicant’s affidavit, which again was not the subject of challenge, deposes to the following:

(a)    that a conversation took place on the day of the appeal hearing, between the first applicant and the fourth applicant, during which the first applicant said to the fourth applicant, “I am unable to attend the hearing today. I am not feeling well. I have severe backache”;

(b)    that the fourth applicant came to know that his father was unwell and suffering severe back pain;

(c)    that on the day of the appeal hearing, the fourth applicant attended upon the Federal Court registry to provide medical evidence to the registry and waited until about 12.20 pm to ascertain whether or not the appeal hearing would be adjourned;

(d)    that the time of the appeal hearing, being 2.15 pm on a Friday, was at a time when the fourth applicant was due to attend “the obligatory prayer (Jummah) that I attend at my local mosque every Friday as part of my religious beliefs”.

11    The fourth applicant’s affidavit also annexes the material that was before the Court at the appeal hearing concerning the first applicant’s medical condition, augmented by some additional material which corroborates that the first applicant had been involved in a motor vehicle accident and was pursuing a claim for personal injury. No objection was taken to any part of the fourth applicant’s affidavit.

12    Mr Kumar’s submission was that the evidence should satisfy the Court that there was a reasonable excuse for the absence of all of the applicants. The first applicant was, for all practical purposes, running the case on behalf of all the applicants at the appeal hearing. The second applicant, the first applicant’s wife, relied on the first applicant in order to represent her interests in relation to the appeal. The third applicant was a child, aged 14 years, and, as a minor, could not be expected to appear. The fourth applicant has provided, it was submitted, a compelling explanation as to why he could not appear at the appeal hearing, due to the necessity for him to comply with his religious commitments.

13    The submissions made by Ms He on behalf of the Minister focused on the fact that there was nothing about the additional medical evidence which would persuade the Court to take a view contrary to that expressed in my earlier judgment. Reference was made to the fact that, at [14]-[16] of my earlier judgment, I had said the following:

No explanation was provided as to why the medical difficulties said to have been suffered by the first appellant were not communicated at an earlier time, given that the condition was apparently extant as long ago as 18 July 2017. Leaving that issue to one side, this case seems to be an example falling into the same category as considered by Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 and Pagone J in Singh v Minister for Immigration and Border Protection [2016] FCA 108, that is, where a medical certificate is, on its face, quite unsatisfactory.

The medical certificates do not purport to address the critical question of whether, and if so why, the relevant “medical condition” would prevent the first appellant from travelling to Court and participating effectively in the hearing. Like the position in NAKX and Singh, I do not accept, on the basis of the material provided, that the Delphically described “medical condition” would have prevented the first appellant from travelling to Court and participating effectively in the hearing. Even if I was wrong about this, there is no explanation as to why the first appellant could not have made the necessary arrangements to attend the hearing by telephone, nor is there any explanation as to why the other appellants have also not appeared. I agree, with respect, with what Pagone J said in Singh (at [2]), namely that:

…what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing.

The medical certificates provided by the first appellant are noticeably deficient in this regard. I do not regard the contents of the Adjournment Request as augmenting the content of the medical certificates in any meaningful way. Although the first appellant says his treating doctor has advised him to obtain “complete bedrest”, the medical certificates do not make that plain, nor is it evident why this would prevent participation by telephone; again, even if this is the case, there is no explanation as to why the condition could not have been brought to the attention of the Court at an earlier stage such that appropriate arrangements could then have been made.

14    On its face, I consider the medical material to be at best equivocal. Certainly, the material from Allianz does not appear to be entirely consistent with the first applicant being so afflicted with severe back pain as to have prevented him from having any participation at the appeal hearing. The objective medical evidence is, however, only part of the material before the Court when it comes to the question of whether a reasonable excuse has been demonstrated. I indicated to Ms He that, in accordance with usual principles, given the nature of the Application and the absence of any challenge as to its veracity, it seemed to me that I would have to be satisfied that the unchallenged evidence was inherently unbelievable in order for me to reject it: see Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 at 371 per Gibbs J. Ms He conceded, with respect correctly, that the evidence of the communications between the first applicant and the fourth applicant as to contemporaneous representations as to the first applicant’s state of health did not fall into that category.

15    Accordingly, it follows that, despite considerable misgivings as to the state of the medical evidence, I should proceed on the basis that the first applicant was unwell and was unable to attend the appeal hearing. Similarly, in the absence of any challenge to the evidence given by the fourth applicant, I consider I should accept his evidence that he has what he considers to be a mandatory religious obligation to attend on Fridays, preventing his appearance when the matter was listed.

16    There was no suggestion that the second applicant, being the first applicant’s wife, was not genuinely proceeding on the basis that the first applicant would deal with the matter on her behalf. The position of the third applicant, as a minor, seems also to be consistent with the notion that the first applicant was dealing with this matter on behalf of his entire family, with some assistance from the fourth applicant.

17    In these circumstances, I am satisfied (without great conviction) that the first MZYEZ factor has been satisfied, namely, that there is a reasonable excuse for the absence of the applicants at the appeal hearing.

The existence and nature of any prejudice

18    Mr Kumar submitted that there was no relevant prejudice. I raised with Mr Kumar the possibility that one matter which might be said to constitute prejudice was the fact that there was a costs order which was made in favour of the Minister at the conclusion of the appeal hearing. Mr Kumar conceded that he did not have any instructions in relation to payment of those costs, or as to any costs consequences in relation to the reinstatement of the appeal. Ms He did not submit that the Court should proceed on the basis that there is any relevant prejudice. In response to my query as to whether or not costs could be seen as a relevant prejudice, Ms He informed me, commendably, that as a model litigant, that point would not be taken on behalf of the Minister.

19    It follows that the second MZYEZ factor has also been satisfied, namely that there is no relevant prejudice.

Whether there is a reasonable prospect of success

20    Mr Kumar, consistently with his obligations under Part VB of the Federal Court of Australia Act 1976 (Cth), during the course of his oral submissions, narrowed the focus of his contention as to the arguability of the appeal to one point. This point was that the Tribunal did not engage in any realistic way with the question of whether it was reasonable to expect the first applicant to work outside of Dhaka, either remotely conducting his business or in some other occupation. The Tribunal, as I understand the submission, impermissibly reasoned that because the business could be operated ‘remotely’ from Australia, this necessarily meant that the business could be operated ‘remotely’ from a place outside of Dhaka and within Bangladesh.

21    Given the contention as to arguability was narrowed to this matter, it is unnecessary that I deal further with the other arguments canvassed in my earlier judgment, where I reached the then preliminary view that there was nothing of any substance in the 13 grounds of appeal. For the avoidance of doubt, I have had the opportunity of reviewing the material again, and adhere to the views that I expressed in my earlier judgment concerning the lack of merit of the grounds of appeal, save for the issue now pressed following legal representation being obtained by the applicants (with which I will now deal).

22    The first thing that should be noted about the matter raised by Mr Kumar, is that it was a point squarely raised by the applicants in the proceedings below. In response to a not materially dissimilar submission, summarised in SZWBK v Minister for Immigration and Citizenship [2017] FCCA 434 at [13], the primary judge (at [14]) recorded a submission made by the Minister that the Tribunal did have regard to the issue of relocation within Bangladesh in an orthodox way.

23    In dealing with this submission, the primary judge reasoned as follows:

(a)    the Tribunal correctly directed itself to the decision of the High Court in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18, and correctly stated that the test was “whether relocation is reasonable, in the sense of ‘practicable’, must depend on the particular circumstances of the applicant and the impact upon that person of relocation within his or her country”;

(b)    his Honour reminded himself (at [16]) that just because the Tribunal set out the correct test for relocation does not necessarily mean that the Tribunal understood the test or correctly applied it, and the question of whether or not the Tribunal did so depends in part upon whether the Tribunal addressed the questions it ought to have addressed in applying the test of relocation;

(c)    noted that in the context of the complaint that the first applicant made, the question of whether or not the test was correctly applied depended, in part, on whether the Tribunal asked questions that could reasonably be taken to have indicated that the Tribunal understood that, when considering the reasonableness of relocation, it was relevant to consider whether it was reasonable to expect the first applicant would be able to earn a livelihood in the place to which it considered he should relocate;

(d)    recorded the fact that the Tribunal asked questions of each of the first, second and fourth applicants questions relating to relocation, which are set out at [17]-[19] of the primary judge’s reasons, as follows:

The Tribunal asked questions of each of the applicant, the applicant’s wife, and one of the applicant’s sons that related to relocation. The following records what the Tribunal asked the applicant’s wife:

MEMBER: ...I do have some concerns about, given that this seems to be a local issue, why you wouldn’t be able to return to another city.

INTERPRETER: There’s a lot of ..(not transcribable).. in Bangladesh. This one ..(not transcribable)

MEMBER: If you return to Bangladesh now, what would be your family’s financial situation?

INTERPRETER: Yeah, this is .. (not transcribable) .. because we do not have anything .. (not transcribable)..

MEMBER: Because sorry, we don’t have anything?

INTERPRETER: ..(not transcribable)..

The question the Tribunal asked one of the applicant’s sons, and the answers the son gave, is as follows:

MEMBER: Why do you think your father couldn’t return to Bangladesh and live in a different city from [Mr RA]?

INTERPRETER: It’s, it’s since ..(not transcribable) ..to Bangladesh. In Bangladesh, it’s hard to find a place ..(not transcribable) ..involved in politics, they’ve got eyes everywhere. It’s ..(not transcribable).. because business ..(not transcribable).. lots of people ..(not transcribable).. The ship was the reason the people know my father. So if he ..(not transcribable)..

The questions the Tribunal asked, and the answers the applicant gave, are as follows:

MEMBER: In relation to the evidence that your son gave about your prominence in other cities because of your business, do you think that you could return to another city and not run your shipping business? So for example, previously you worked both in Bangladesh and in other cities as a mechanical engineer. Could you do that again?

INTERPRETER: Yeah, I can’t do this because I actually did ..(not transcribable).. so many people know me ..(not transcribable)..

MEMBER: What, sorry?

INTERPRETER: ..(Not transcribable).. If you go to that association ..(not transcribable).. see my picture ..(not transcribable)..

(italicised in original)

24    The primary judge then expressed the view (at [20]) that the questions asked indicated that the Tribunal member was aware of the relevance of the issue of the reasonableness of relocation (and as to whether the first applicant would be able to work in a city or region outside of Dhaka but within Bangladesh). More particularly, the primary judge concluded that by asking the identified questions, the Tribunal member attempted to obtain information relevant to determining whether it was reasonable to expect the first applicant to conduct the business remotely or pursue another occupation outside of Dhaka.

25    The primary judge concluded, notwithstanding what appear to be some gaps in the transcription of the answers given by the applicants, that it was apparent that none of the applicants said that the first applicant would be unable to conduct the business remotely from a place outside of Dhaka, or that the first applicant would be unable to earn a living by pursuing another occupation. Although the second applicant did refer to the fact that it would be difficult to live in a city other than Dhaka, the primary judge noted that that answer did not address whether the first applicant would be able to conduct the business from a place outside of Dhaka, or engage in any other occupation. The reason given by the first and fourth applicants that the first applicant could not relocate was not that the first applicant would be unable to conduct the business remotely or find another occupation.

26    The separate point was also made that those who were alleged by the first applicant to be intent on harming him would find him wherever he would relocate within Bangladesh. The primary judge recorded that the submissions reflected the way in which the case of the applicants was presented to the Tribunal: see [21]. The primary judge then referred back to the questions asked of the applicants by the Tribunal member, and noted that these were intended to elicit from the applicants such evidence that could have showed, or could rationally bear upon the question of, whether or not it would be unreasonable for the first applicant to relocate within Bangladesh because he would be unable to conduct the business remotely or find another occupation if he were to relocate. The primary judge recorded that, given the absence of any specificity in the relevant responses; the Tribunal member considered the relevant question and reached a conclusion that was reasonably open. Accordingly, the primary judge rejected the submissions made by the applicants that the Tribunal failed to engage in any meaningful way with the question of whether it was reasonable to expect the first applicant to conduct the business remotely or pursue a different occupation if he were to relocate within Bangladesh.

27    Put another way, the primary judge found that the Tribunal had arrived at its conclusion that the first applicant could relocate from Dhaka to other areas of Bangladesh and conduct the business remotely or carry on another occupation after it considered whether it would be reasonable for the applicant to do so and that, as a consequence, on a fair reading of the reasons of the Tribunal, the Tribunal concluded that it would be reasonable for the first applicant to relocate from Dhaka to other areas of Bangladesh or conduct the business remotely or carry on another occupation: see [23].

28    The only additional matter which appears to be put by Mr Kumar is that the Tribunal decision was infected by an impermissible process of reasoning submitting that just because it was found the first applicant could continue to manage the business remotely, as he had done during the year and a-half that he has been in Australia, this did not bear upon the question of whether or not he could conduct the business at a relocated area within Bangladesh. Having again reviewed the Tribunal’s decision, particularly at [37]-[43], I do not consider that it is arguable that the error for which Mr Kumar contends exists.

29    The Tribunal noted that when the issue of relocation was first discussed with the applicants at the hearing, they stated that the first applicant was so well-known because of his involvement with the shipping industry, and through his membership of the Bangladesh Cargo Vessel Owners’ Association, that he would be recognisable wherever he went. That contention was rejected. The Tribunal then referred to the evidence that the first applicant had not taken any steps to be involved in the shipping industry in Australia. This is despite the fact that evidence was given that, at the time of the Tribunal hearing, the first applicant operated one ship in Bangladesh (which was being primarily managed by the master of the ship, with some input from the first applicant’s brother). The Tribunal was satisfied that the first applicant could return and either not be involved in the shipping industry and work as an engineer as he previously did or engage in other jobs as he had been while in Australia (for example, as a car mechanic).

30    It was in this context that the Tribunal made what it described as the alternative point, namely that the first applicant could continue to manage the business remotely as he had done during the year and a half he had been in Australia. The Tribunal member was not satisfied that the first applicant’s occupation would necessitate him being involved with the shipping industry in a way that would identify him to someone looking for him for malign purposes. Reference was then made to the fact that there are a number of large cities within Bangladesh and that, given the localised nature of the commercial dispute which was the subject of the evidence before the Tribunal, the Tribunal member was not satisfied that there was a real risk of the applicants being harmed if they were to relocate to another large city in Bangladesh.

31    It was in this context that the Tribunal member then moved to the consideration of whether it would be reasonable for the applicants to relocate. In doing so, reference was made to the fact that there were no legal impediments to internal relocation and that the applicants had shown that they had the ability and willingness to relocate to Australia, where the first applicant was able to obtain employment, continue to operate one ship in Bangladesh and provide support for the family generally.

32    In summary, I do not consider that the primary judge fell into error in determining that no jurisdictional error had been shown to have been made by the Tribunal and, in my view, there is no substance to Mr Kumar’s additional contention. I have given consideration as to whether there would be further material that could be put, should the matter proceed to an appeal hearing at a later date. Given the narrow nature of the attack and the lack of substance in the other grounds of appeal that have not been pursued by Mr Kumar, Mr Kumar has not identified any additional matters which should mean that the argument should proceed to a further hearing. In my view, the additional contention made on behalf of the applicants does not satisfy the third MZYEZ factor in that I do not consider that there is a reasonable prospect of success on the substantive appeal.

C    conclusion & orders

33    In the light of the above, I dismiss the Application and order that the first, second and fourth applicants pay the Minister’s costs of the Application.

Associate:

Dated:    27 September 2017

SCHEDULE OF PARTIES