BZAAV v Minister for Immigration & Anor [2011] FMCA 549 (20 July 2011)

Last Updated: 21 July 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZAAV v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 549

MIGRATION – Application to set aside orders dismissing primary application for non-appearance – relevant factors – no merit in primary application sought to be reinstated.

Federal Magistrates Act 1999, ss.67, 69 Federal Magistrates Court Rules 2001, r.16.05(2)(a) Migration Act 1958, ss.424A, 424A(1), 424A(3)(a), 430(1)

AB v Federal Commissioner of Taxation (1998) 157 ALR 510 Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 Khan v Minister for Immigration & Citizenship [2011] FCAFC 21 Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448 Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 146 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] 140 FCR 272 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasangham [2000] HCA 1; (2000) 168 ALR 407 SZNFE v Minister for Immigration [2010] FMCA 181 SZOSF v Minister for Immigration [2011] FMCA 204 Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 VGAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178

Applicant:

BZAAV

First respondent: Second respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP REFUGEE REVIEW TRIBUNAL

File Number:

BRG 157 of 2011

Judgment of:

Jarrett FM

Hearing date:

14 July 2011

Date of Last Submission:

14 July 2011

Delivered at:

Brisbane

Delivered on:

20 July 2011

REPRESENTATION

Solicitors for the Applicant:

Clayton Utz

The Respondent appeared in person.

ORDERS

(1) The application filed on 4 May, 2011 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 157 of 2011

BZAAV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First respondent

REFUGEE REVIEW TRIBUNAL
Second respondent

REASONS FOR JUDGMENT

1. On 7 April, 2011 I dismissed the applicant’s application, filed on 10 March, 2011 for judicial review of a decision of a Refugee Review Tribunal. I dismissed the application because the applicant did not appear when the matter was called. The applicant now applies for an order setting aside my order dismissing his application. The application is opposed by the Minister.
2. Generally speaking, I may set aside my earlier order dismissing the applicant’s primary application if I am satisfied that it is in the interests of justice to do so: Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, AB v Federal Commissioner of Taxation (1998) 157 ALR 510. I might also set aside my earlier order pursuant to r. 16.05(2)(a) of the Federal Magistrates Court Rules 2001.
3. Two considerations loom large. First are the reasons given by the applicant for his non-appearance. As Barnes FM put it in SZNFE v Minister for Immigration [2010] FMCA 181 at [14] the question is “whether the applicant can show that by accident and without fault on his part the orders were made in circumstances that warrant the exercise of discretion under rule 16.05(2)(a).”
4. The second issue for consideration is whether there is an arguable case or question to be tried in the applicant’s primary application. If there is insufficient merit in the primary application, it may be futile to set aside the orders dismissing it: Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448.

The explanation for non-appearance

5. The primary application was listed for its first court date on 7 April, 2011 at 9:30am. On 1 April, 2011 by email to the Registry of this court, the applicant sought permission to appear at the first court date by telephone. That permission was granted. At the appointed time and place for the first court date, the applicant was telephoned on the telephone number that he provided for that purpose, but there was no answer.
6. In his affidavit filed in support of this application the applicant says that on the morning of the first court date “I received a private number phone call only once at that time I was in the bathroom. I could not call back because I was not sure about it. I am not represented by any solicitor, therefore I am not fully aware of the legal consequences of the court.”
7. At the hearing of the present application, the applicant appeared in person but did not elaborate on his indisposition on the first court date any further. Thus, it appears the explanation for his failure to appear was that he was in the bathroom at the time the relevant telephone call was made.
8. Litigants in the Federal Magistrates Court are able to seek permission to appear by audio link: s.67 of the Federal Magistrates Act 1999. Such appearance is subject to certain conditions set out in s.69 of the Act, none of which are particularly relevant in this matter.
9. Ordinarily parties are required to appear personally at Court. Appearance by audio link or video link is the exception rather than the rule. Parties who request to appear by audio or video link need to take special care that the purpose of permitting parties to appear via electronic means is not defeated because a party is not available when the court is ready to deal with their matter. Appearance by electronic means is an indulgence.
10. The applicant’s evidence, however, explains why he did not answer the telephone call from the Court.

Prospects

11. In his application for a protection visa, the applicant claimed that he was 38 years old, was born in Lahore Pakistan and had lived in Dubai, United Arab Emirates and Pakistan from time to time. He claimed that he was married and had three children aged 10, 6 and 1. His wife and children, his three brothers, a sister and his parents all live in Pakistan. The applicant accepted that he was able to return to the UAE to live, but he sought protection from having to return to either Pakistan or the UAE.
12. The gravamen of his claim was that he had entered a “love marriage” with his wife which was supported by his family, but not by his wife’s family. He claimed that his family and his wife’s family were members of different political parties in Pakistan and the political interests supported by his wife’s family were now in government. Consequently, the applicant claimed, he had been harassed by his wife’s family when he lived in Pakistan because of his political beliefs and because they did not approve of his marriage to his wife. Further, he said that his brother-in-law had found out where the applicant was living in Dubai and had gone to Dubai so as to harass him. The applicant claimed that he was in fear of his life and that he would be killed by his wife’s family. He claimed that the police in Pakistan were unable to protect him because the police also supported the current government in that country.
13. Before the tribunal, the applicant said that he had lived most of his life in the UAE with his parents. He had gone there initially in 1984 or 1985 and had spent most of his life living there although he had frequent visits to Pakistan, including a year in 1989. He had other visits of five to six months duration. He told the tribunal that although he did not have permanent residence in the UAE, he can return there to live if he wished.
14. The tribunal summarised the applicant’s claims as follows:
    • 63. The applicant’s claims can be summarised as follows. The applicant married his wife in 1999 in a love marriage which was opposed by his wife’s family who had arranged for her to marry another person when she was a child. The applicant supports a different political group (Musharraf Group) to his wife’s family who support the Nawaz League and this had been a further source of conflict. In 2007, his brother-in-law travelled to the UAE and threatened him by phone. On two occasions in early 2010 members of his wife (sic) came looking for him at his father’s house to pressure him to divorce his wife; abused his father; fired shots at the house and threatened that they would kill him. The police will not protect him because they do not support the Nawaz League which is the dominant political party.
15. The tribunal concluded that the applicant had not provided an honest account of the development of his relationship with his wife and the degree of opposition, if any, of his wife’s family to their marriage. The tribunal set out in paragraph 64 – 68 the reasoning process which lead the tribunal to express those doubts about the applicant’s claims.
16. The tribunal concluded that the applicant’s claims that his wife’s family wished to harm him because his wife and the applicant had entered into a “love marriage” as implausible. In coming to that conclusion, the tribunal relied on country information which suggested that violence against parties to love marriages was generally directed against women. The tribunal concluded that the applicant’s evidence that he alone had been the target of threats and elaborate attempts to locate and harm him was inconsistent with no action having been taken against his wife except as a means to locate him. The tribunal did not accept that the applicant had been threatened by his brother-in-law as the applicant had claimed.
17. The applicant relied upon two incidents that were said to have occurred at his father’s house in January and March of 2010 to support his claims of violence against him. He said that those incidents demonstrated the risk there was to him if he was to be returned to Pakistan. However, the tribunal did not accept that the incidents occurred as described by the applicant. The applicant attempted to corroborate his claims about the incidents by reference to a Petition that he says he filed with the Court of Sessions at Lahore, Pakistan. The tribunal, however, did not accept the authenticity of that Petition.
18. The tribunal rejected the applicant’s claims that the reason that his wife’s family were interested in him was because of his political beliefs. Rather, the tribunal did not accept that the applicant was of any particular interest to his wife’s family. The tribunal did not accept there was a real chance of persecution of the applicant by reason of his political beliefs.
19. In his primary application in this Court the applicant seeks that the tribunal’s decision be set aside on the following grounds:
    1. The Tribunal constructively failed to exercise its jurisdiction;

Particulars

The applicant provide a document to the tribunal to corroborate his claims. The Tribunal failed to engage in active intellectual process in respect of those documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging in intellectual process as to the contents of the documents.

2. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance with section 424A as described by the majority Judge of the High Court in SAAP.
3. The Tribunal did not give the applicant before the hearing the country information he had about Pakistan. The Tribunal used this information whilst making the decision. This was against s424A of Migration Act 1958.
20. The first ground that the applicant wishes to argue seems to be that the tribunal was wrong to reject the authenticity of the Petition he alleges was filed with the Court of Sessions, Lahore. Further, he argues that it was in error to place no weight on that document without first properly considering it.
21. It is clear from the tribunal’s reasoning that the tribunal was aware of the Petition (see paragraphs 22, 29 and 51 where the tribunal refers to having those documents). In paragraph 73 of the reasons the tribunal expresses concerns about the authenticity of the petition. It was clearly inconsistent with the applicant’s claims that certain incidents (at least the second of them) occurred. The tribunal clearly set out in its reasons why it had come to the conclusion that the petition was not genuine.
22. Moreover, “s. 430(1) [of the Migration Act 1958] does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision maker to give reasons for rejecting evidence inconsistent with the findings made.”: Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940. Later in that case, at [31] the Full Court of the Federal Court said “It is not necessary, in order to comply with s.430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made. A fortiori, there is no duty on a member of the tribunal to seek out material which has not been provided to it in connection with the case under consideration in order to give reasons for not attaching any weight to that material.”
23. The tribunal’s reasons make it clear that the tribunal referred to the relevant document. It is also clear from paragraph 73 of the tribunal’s reasons that it gave relevant consideration to the document. As Cameron FM remarked in SZOSF v Minister for Immigration [2011] FMCA 204: “In doing so, the tribunal discharged its obligation to the applicant to consider the evidence which he provided to it. The applicant’s assertion that the tribunal failed to engage in active intellectual process in connection with the press reports which he submitted suggests not a lack of consideration, but a lack of favourable consideration of those documents. In circumstances where the tribunal did consider the documents, and did so in the context of the claims made and the arguments advanced by the applicant, the fact that it did not accord them the weight which the applicant would have wished does not support a finding of jurisdictional error; Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306; Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 146; Khan v Minister for Immigration & Citizenship [2011] FCAFC 21.” Those observations are apt in this case.
24. The balance of the applicant’s grounds appear to me to be best summarised as a claim that the tribunal member was in error and did not comply with the obligations cast upon the tribunal by s.424A of the Migration Act 1958 because the tribunal did not:
    1. Tell the applicant that the tribunal was intending to dismiss his claim so as to give him an opportunity to make further representations or submissions to the tribunal against the proposition; and
    2. Give him the country information that the tribunal relied upon in relation to Pakistan that was in its possession.
25. As to the second proposition, it is clear that s424A(3)(a) excludes country information from the obligations cast on the tribunal by s424A(1): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] 140 FCR 272 at [64] – [74] and at [112] – [138] and VGAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [11] – [16]. The tribunal was not obliged to provide the independent country information in respect to Pakistan that it had to the applicant for comment.
26. It is also settled law that the tribunal is not obliged to put to the applicant, either pursuant to s424A(1) or at all, the tribunal’s reasons for decision or proposed reasons for decision so as to enable the applicant to comment upon them and to provide the applicant with another opportunity to attempt to persuade the tribunal to allow the application.

Conclusion

27. I have come to the conclusion that the applicant’s primary application has very limited prospects of success. In the absence of any appreciable merit on the part of the primary application, to allow the present application to set aside the earlier orders dismissing the primary application would be futile. Were it the case that the applicant was able to demonstrate that there were arguable claims in respect of the tribunal’s decision, I would have been inclined to allow the application to set the orders aside. For the reasons given however, I am not persuaded that I should do so.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 21 July 2011