Federal Court of Australia

BKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 742

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application filed 18 May 2022 is dismissed.

2.    The applicant pay the first respondent's costs fixed in the sum of $1,000.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant's appeal from a judgment and orders of the Federal Circuit Court of Australia was listed before this Court for hearing on 27 April 2022. The applicant had sought review of a decision of the Administrative Appeals Tribunal to affirm a delegate's decision to refuse the applicant's protection visa application. The Federal Circuit Court dismissed the review application: BKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1306.

2    The applicant did not attend the hearing of the appeal, and on the application of the respondent (Minister) I gave reasons and made an order pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) dismissing the appeal: BKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 448 (dismissal reasons).

3    On 18 May 2022 the applicant filed an application seeking orders that the order dismissing the appeal be set aside, and the appeal be reinstated. This course is open to him pursuant to r 36.75(2).

4    The Minister opposed the application.

Principles

5    The principles on a reinstatement application where dismissal has resulted from the applicant's absence at a hearing are well known. Where reinstatement is sought, a discretion falls to be exercised by the Court which requires the consideration of three factors:

(1)    whether there is a reasonable excuse for the party's absence;

(2)    the existence and nature of any prejudice which might flow to the other party from a reinstatement and if so, the extent to which that prejudice can be counteracted or assuaged by a costs order, an adjournment or other relief; and

(3)    whether the applicant for reinstatement has a reasonably arguable prospect of success on the substantive application.

6    These factors were referred to by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] and have been cited on many occasions since.

Whether a reasonable excuse for the applicant's absence?

7    As was set out in the dismissal reasons (at [12]-[16]), prior to the hearing the applicant sought to adjourn the hearing because of his mental and physical condition. I was not satisfied that there was evidence before the Court that supported or addressed his claim that he was unable to participate in the hearing whether by video link or in person. My associate had informed the applicant prior to the hearing that it would be proceeding, despite his request.

8    In support of his application the applicant filed an affidavit that set out the following:

(a)    he attended a dentist's appointment on 11 April 2022 and had two fillings, with the dentist indicating that in all he needed eight fillings;

(b)    a couple of days later he started feeling pain, and could not eat or open his mouth;

(c)    he had trouble finding a doctor for the purpose of an appointment;

(d)    he was told he could not go to the emergency department at the hospital because unless he had a doctor's referral he would need to pay and he had no money;

(e)    it was not until 3 or 4 May 2022 that he was able to see a doctor;

(f)    the doctor referred him to the emergency department; and

(g)    the emergency department was unable to diagnose the issue and he was discharged.

9    The applicant relevantly annexed a copy of a report from a medical officer at the Royal Perth Hospital dated 6 May 2022. The report noted an absence of recent fillings and the maxillofacial team discharged him from hospital but for further outpatient assessment.

10    The Minister points to some discrepancies in the applicant's evidence and the medical report, including as to the period of alleged pain and the dental treatment. The Minister also points to the unexplained delay in bringing the reinstatement application and the absence of any evidence as to why the applicant's medical condition result in his non-attendance at the hearing. I accept that there are difficulties with the evidence, but I also accept there is some medical evidence that reports that the applicant said he was experiencing some pain at the time. By itself, the evidence would not be sufficient to justify the non-attendance. However, whether or not there was a sufficient explanation for the delay is not of itself determinative in this matter. The matter that weighs most heavily against the reinstatement is that of prospects.

Whether prejudice

11    The Minister accepted that there was no relevant prejudice save for costs, but counsel also noted that the absence of prejudice does not of itself justify the exercise of the discretion in favour of the applicant. I accept that submission. I consider prejudice to be a neutral factor in the circumstances of this case.

Whether reasonable prospect of success on substantive application

12    The notice of appeal has two grounds which may be paraphrased as follows:

(a)    the Tribunal made an error in that it referred to the date of the applicant's diploma from TAFE Western Australia as having been completed on 12 March 2020, when it was completed on 20 December 2009. Such an error indicates that the Tribunal did not consider his protection claim fairly; and

(b)    the Tribunal did not accept that there had been an attack on the applicant's brothers, when in fact it happened. He had supplied the 'police general diary complaint' that showed this to be the case. He could not supply further evidence because he suffered burns and was hospitalised and undergoing rehabilitation, and he 'begged for time'.

13    Whilst the errors complained of are said to relate to the decision of the Tribunal rather than the decision of the primary judge, I am prepared to proceed on the basis that the applicant's complaint for the purpose of the appeal is the failure of the primary judge to find that the Tribunal's conduct comprised error, and in that regard the primary judge was also in error.

14    In order to provide context for these grounds, it is necessary to detail some of the facts relevant to the substantive appeal.

15    The applicant came to Australia on 1 January 2008 for the purpose of undertaking studies in Australia. The Tribunal accepted that he completed a diploma in hospitality management in Australia in 2009. He unsuccessfully applied for a subclass 485 skilled graduate visa. He returned to Bangladesh in May 2011 to visit his parents. On 16 June 2011, he returned to Australia and has not since departed. Reviews of the refusal to grant the subclass 485 skilled graduate visa were unsuccessful.

16    The applicant was issued a series of bridging visas before applying for a protection visa in 2013. That application was invalid and a further application was lodged in February 2014.

17    On 17 November 2014 the Department of Immigration and Border Protection invited the applicant to an interview regarding his visa application. That interview was held on 5 December 2014.

18    On 29 June 2015 the application for a protection visa was refused by a delegate of the Minister.

19    The applicant sought review of the delegate's visa refusal decision in the Tribunal. A hearing date of 9 December 2016 was originally set by the Tribunal. On 6 December 2016 an email was sent on the applicant's behalf to the Tribunal informing it that the applicant had suffered a burn injury in an accident at his home that required some treatment as an inpatient, and requesting an adjournment of the hearing. On 14 December 2016 the Tribunal sent an email to the applicant indicating that the hearing was adjourned and relisted on 11 January 2017. On the same day the Tribunal was contacted by the applicant (with the assistance of a legal aid practitioner) and told that the applicant was no longer an inpatient but was still receiving some treatment. The process for seeking any further adjournment was apparently explained. There was no evidence of any further adjournment application. The relisted hearing proceeded on 11 January 2017. The Tribunal affirmed the delegate's decision.

20    On 29 March 2017, the applicant sought to review the Tribunal's decision at the Federal Circuit Court. A hearing was conducted in May 2020 and judgment delivered on 9 June 2020.

Relevant reasoning of Tribunal and Federal Circuit Court

Ground 1

21    The Tribunal accepted that the date when the applicant completed his diploma was 20 December 2009, as declared in his application (at para 59 of its reasons). The Tribunal made no error in this regard. Therefore, there is no basis for the assertion that an error as to that date reflected that the review application was dealt with unfairly by the Tribunal as a whole.

22    The primary judge was in error in referring to the date of 12 March 2020 (at [4]), an error that perhaps flowed from the delegate incorrectly referring to 12 March 2010 as the relevant date. The reference to 2020 is incongruous in the context of the chronology recorded by the primary judge in the paragraph, and is clearly a typographical error. It is not material to the reasoning or the outcome.

23    I do not accept that the veracity of the reasoning of the primary judge as a whole is undermined by an error of that nature. Nor was it an error made by the Tribunal. I do not consider such an argument would have any prospect of success were the substantive appeal reinstated.

Ground 2

24    Relevantly to ground 2, one of the elements of the applicant's protection claim related to alleged attacks on his brother(s). The Tribunal recorded this part of his claim as follows (at para 12):

Most of his family supports the opposition party. In 2010, one of his brothers and his uncle were attacked and his family was threatened that they would destroy him. His brother informed the Police but nothing changed. In May 2011, he travelled to Bangladesh but returned for his safety after 12 days.

25    The Tribunal discussed the claim as follows:

22    … He claimed that in 2010 one of his brothers and his uncle were attacked and his family was threatened that they would destroy him. He claimed that his uncle informed the Police but nothing changed. The Tribunal discussed these claims with him during the hearing. He stated that two of his brothers and his uncle were attacked. He stated that one of his brothers was badly injured and the other was hurt. He stated that the attackers went in a group to his house and made threats but no one was at home. He stated that they threw a stone, broke glass and then went away. When asked what this dispute was about, he stated that it was a dispute with one of his neighbours over land and it is now a political issue.

23    This inconsistency in the applicant's evidence in relation to whether it was one of his brothers or two of his brothers who were attacked raises concerns in relation to his credibility and the veracity of his claims.

26    The Tribunal then referred to the complaint that the applicant had told the Tribunal his uncle had lodged with the police:

25    The applicant provided to the Department and the Tribunal a copy of a complaint by [uncle] dated 27 April 2010 to the Officer in Charge of the Sadar Model Police Station, Naogaon, requesting an entry into the General Diary. The Tribunal discussed this document with the applicant. He stated that it was a life-threatening situation, his brothers and uncle were attacked and his family was threatened. He stated that the complaint was filed with the Police but the Police did nothing. When asked whether the information in the complaint is true and correct, he responded yes. He stated that the complaint is from the Police file. When asked whether the complaint was made to the Police before the attack or after the attack, he responded that it was after the attack.

26    The complaint indicates that [uncle] and others are joint owners of property that they inherited and have leased. His uncle asked the lessee for his share of paddy, as it was harvest time, and the lessee abused him in foul language. His uncle told the lessee that this would be resolved in a meeting and then went to work at his shop. Later that morning [named person].went to his shop with 'some terrorists' and threatened and abused him in foul language. They told him they were leaving him for that day but would kill him the next time they got him. That evening his uncle received a telephone call from his home informing him that [named person] went to his house with 'terrorists' and tried to beat his younger brother. His neighbour saved his younger brother so they were unable to beat him but they broke the door and the light in his house and threatened to kill his younger brother. In the circumstances their 'daily life is in danger' and there is a possibility that they could be killed. It requests that these facts be entered in the General Diary at the Police Station and lawful steps be taken for a proper investigation.

27    The Tribunal assessed this evidence, reasoning that:

27    The complaint to the Police, which the applicant stated was filed after the attack, does not indicate that either of his brothers was attacked let alone that one was badly injured and the other was hurt. It does not indicate that a threat was made to his family that he would be destroyed. This ·complaint does not support his claims and raises concerns in relation to his credibility and the veracity of his claims. When this was raised as an issue with him, he responded that there should be two copies from the General Diary which will corroborate his evidence: When the Tribunal noted that he provided one complaint to the Department, he responded that he provided the Department with what he received. He stated that he did not read it carefully. He has not provided the Tribunal with any further documents to support these claims.

28    In this context the Minister refers to the fact that the hearing before the Tribunal was on 11 January 2017, and the decision was not delivered until 28 February 2017, and there is no record of the applicant seeking additional time to provide any further documents to the Tribunal.

29    There are other references in the reasons to a lack of supporting evidence. For example:

28    During his interview with the Department on 5 December 2014, the applicant made a new claim that a case has been filed against his family in relation to the dispute over property. He claimed that he fears a case could be filed against him because he is part of the family or his name could be added to the existing case. The Tribunal discussed these claims with him. He gave evidence that the case is still pending. The Tribunal asked him why he had not provided any evidence to the Department in relation to the case when he was specifically requested to do so. He responded that he asked his brother and his brother stated that he could not go there. He then stated that his brother told him he would contact their lawyer, obtain some documents and send it to him but he did not do so. When asked why he did not ask his father to obtain some documents for him, he stated that his father is not dealing with this matter and he rarely goes out. When asked whether his father is a party to the proceedings, he stated that he is but his brother and lawyer are dealing with the matter.

29    The Tribunal does not accept this explanation as to why the applicant has not provided any evidence in relation to the Court case. His failure to do so raises concerns in relation to his credibility and the veracity of this claim. The Tribunal also finds it implausible that a case could be filed against him or his name could be added to the existing case when he is not an owner of the land and has nothing to do with the dispute.

30    The Tribunal then referred to the time that was available to the applicant to obtain evidence about the alleged court case.

44    The Tribunal raised as an issue with the applicant the fact that his evidence to the Tribunal indicates that his main fear about returning to Bangladesh is the Court case against his family and the impact this could have on him. The Tribunal noted that he made no mention of the Court case in his visa application and made this claim for the first time during his interview with the Department on 5 December 2014. The Tribunal noted that he was asked by the Department to provide some documentary evidence in relation to the Court case but has not done so and this raises concerns in relation to the credibility of this claim. He responded that the property is owned by his father and the Court case is in his father's name. He stated that the lawyer who was dealing with Court case went on an extended holiday. He stated that the juniors in his office are not entitled to release documents. He stated that his brother, who is looking after the case, was in hiding and that is why the process has been delayed.

45    The Tribunal inform the applicant that his interview with the Department was on 5 December 2014 and we are now in 2017. The Tribunal noted that he had more than two years in which to obtain evidence in relation to the Court·case. He responded that the Department wanted the Court documents last year (2016) and he was asked much later about submitting hearing papers. He stated that in 2014 he was asked to submit documents about the land dispute. When the Tribunal reminded him of his earlier evidence that the Court case was about the land dispute, he responded that there was a time lapse after he got injured. He stated that the Department thought the Court case was finalised but it was not. He stated that he could not get the hearing papers. He stated that after he got injured he has not been in touch with his family for quite a long time. He stated that he recently contacted him.

31    The Tribunal then said that it did not accept the applicant's reasons for failing to provide documentary evidence. It referred to six reasons, the fifth of which is emphasised by ground 2 of the appeal, being his claim that he was unable to provide evidence because he suffered from a burn injury. The Tribunal concluded:

46    The Tribunal does not accept this explanation for a number of reasons. Firstly, the Tribunal does not accept that the applicant's father's lawyer has been on an extended holiday from 5 December 2014 until now. Secondly, even if his brother who he claims was in hiding was unable to assist him he has four other brothers and a sister who live in Bangladesh who could assist him to obtain some documentary evidence. Thirdly, his father could have contacted his lawyer and asked him to send some documentary evidence to him.

47    Fourthly, the applicant has filed with the Tribunal a copy of the Department's Decision Record dated 29 June 2015 which indicates that he was asked during his interview on 5 December 2014 to provide evidence in relation to the Court case and not in 2016 as stated. Fifthly, he has filed with the Tribunal a letter dated 3 December 2016 from the Royal Perth Hospital which indicates that he presented to the Emergency Department on 3 December 2016 with burn injuries. This was two years after he was asked by the Department to provide the documentary evidence. Sixthly, he gave evidence to the Tribunal that he keeps in contact with his family members once or twice a week and once or twice a month. This is not consistent with his evidence that he has not been in touch with his family for quite a long time.

(emphasis added)

32    As the emphasised passage from para 47 indicates, the Tribunal took into account that the applicant had suffered an injury, but noted the long delay between the request for evidence and the injury being sustained, a delay for which no credible explanation was provided.

33    Having regard to this reasoning, it is apparent that by ground 2 the applicant seeks to cavil with the finding of the Tribunal as to the absence of documentary evidence, and its rejection of the applicant's claim about the alleged attacks on his brothers and the court case against his family. It was not the role of the primary judge to review the merits of the claims that were assessed by the Tribunal and come to his own view of the facts. The assessment and weighing of the evidence was a matter for the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

34    The Tribunal provided a basis for its rejection of the applicant's claims, and those reasons are set out in the extracts I have included and are logical. It follows that there is no real prospect, in my view, that the applicant would establish on any reinstatement that the primary judge erred in dismissing the applicant's review application.

35    Further, to the extent that by ground 2 the applicant refers to his burn injury, it must be observed that the applicant sought and was granted an adjournment by the Tribunal because of the injury, and there is no suggestion that any issue was raised that indicated that the applicant was unable to meaningfully participate in the adjourned hearing. Nor does it appear that any further adjournment was requested.

36    In those circumstances, considering the applicant's prospects of success in the manner required on a reinstatement application, I am not satisfied that the applicant has any real prospect of his proposed appeal succeeding.

37    Therefore, in all of the circumstances, there is no sound basis upon which it should be reinstated.

38    I would dismiss the application.

Additional documents

39    The applicant purported to rely on additional documents by annexing them to a notice of appeal filed 30 June 2020. One is an academic transcript dated 24 June 2020. One is a document with a translation that appears to be a form of court document that refers to a preliminary investigation and a request to oppose bail. The translation is attested in June 2020. The Minister submitted that on any appeal reliance on those documents would be opposed, having regard to the fact that they were not before the Tribunal and post-date the hearing date before the Tribunal. I accept that is it highly unlikely that the applicant would have been granted leave to rely upon such documents on any appeal. The existence of such documents, presented seemingly for the first time to this Court, does not persuade me that there is a sound reason to reinstate the appeal.

Costs

40    I ordered on the dismissal application that the applicant pay the Minister's costs in the sum of $3,500. That order remains in force. The Minister seeks a further $1000 in costs in the event this reinstatement application is unsuccessful. In all of the circumstances, that amount is reasonable and proportionate, and I would make an order to that effect.

41    There will be orders dismissing the application and granting costs in favour of the Minister accordingly.

Associate:

Dated:    28 June 2022