BTR15 v Minister for Immigration and Border Protection

Federal Court of Australia|2016-08-11|Before: Collier J, Edelman J

The application for leave to appeal filed 30 May 2016, and the appeal, be dismissed.
The applicant pay the first respondent's costs of the application, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The applicant, BTR15, is a citizen of India. He appealed from a decision of the Federal Circuit Court on 9 May 2016 which dismissed his application to reinstate his application for judicial review. His application for judicial review sought review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Federal Circuit Court dismissed the application to reinstate the applicant's judicial review application primarily because his prospects of success were very low. The Federal Circuit Court held that the finding made by the Tribunal was open and that there was no misapplication of the law. 2 At the hearing of his application this morning, the applicant explained that he intended to return to India. In circumstances in which his application was not formally discontinued, I explain below the reasons why his application for leave to appeal, and the appeal, must be dismissed.

The decisions leading up to this application 3 On 27 October 2009, the applicant came to Australia on a student visa. On 10 March 2014, he applied for a Protection (Class XA) visa (Protection Visa). On 23 May 2014, a delegate of the Minister refused to grant the visa under s 65 of the Migration Act 1958 (Cth). 4 On 10 August 2015, the Tribunal affirmed the decision of the delegate. The applicant sought a review of the Tribunal's decision by the Federal Circuit Court. The first return date for the matter was 16 November 2015. The applicant did not appear. In default of his appearance, and in circumstances in which his application was weak, the primary judge dismissed the application in default under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). 5 The applicant appealed from the dismissal of his application to the Federal Court of Australia. On 2 March 2016, Collier J held that the appeal was incompetent but that it remained open to the applicant to apply directly to the Federal Circuit Court to set aside the decision to dismiss his application in default and to have the matter reheard: BTR15 v Minister for Immigration and Border Protection [2016] FCA 209. 6 On 22 March 2016, the applicant applied to reinstate his application in the Federal Circuit Court seeking orders under r 16.05(2)(a) of the Federal Circuit Court Rules to set aside the judgment in default. On 9 May 2016, the primary judge dismissed that application. The applicant then applied to this Court for leave to appeal from that decision.

The decision of the Tribunal 7 The decision of the Tribunal upon which the primary judge relied when refusing the applicant leave to reinstate his application was given by the Tribunal on 10 August 2015. The applicant had appeared before the Tribunal and had made submissions. The Tribunal affirmed the decision of the delegate of the Minister to refuse the Protection Visa because the Tribunal was not satisfied that the applicant met the criteria for a Protection Visa set out in s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth). 8 The Tribunal explained that there were two bases upon which the applicant said that he faced a real chance of serious harm or real risk of significant harm upon return to India. The first was that he feared harm from his father. The second was that he feared harm from money lenders. 9 First, as to the claim by the applicant that he feared serious harm from his father, the Tribunal observed that the applicant claimed that his father had borrowed money from money lenders to fund the applicant's studies, which were not completed. The applicant had claimed that after losing his "federal court case" his father had "given up on him" and was "disappointed and distressed and disgusted". The "federal court case" to which the Tribunal referred appears to be applications related to the termination of the applicant's student visa in 2011. The applicant said that he did not believe that his father would physically harm him if he returned to India. But he said that his father considered his respect and dignity to be more important than his children and that his father did not wish to see him again. 10 The Tribunal concluded that although the applicant's father was angry and disappointed with him because he had not completed his studies, neither this anger and disappointment, nor the applicant's father's loss of prestige, dignity, or respect, amounted to potential serious harm to the applicant. The Tribunal did not accept that the applicant's father would harm or disown him, noting that the applicant's father was sending him $300 a fortnight and providing extra money for the applicant to sit aviation exams externally. 11 Secondly, as to the applicant's claims of fear from money lenders who had lent money to his father, at the hearing before the Tribunal the applicant accepted that this was not a problem and things had "settled down". The applicant said that the money lenders had summoned his father to court because the applicant had not repaid a loan. His father had sold one of their houses in November 2014 to pay for the applicant's education and his sister's education. His father had also reached an agreement with the lenders and was "paying them back and has about another year of repayments". His family owned their own home and although his father was retired he had received a lump sum payment on retirement. The Tribunal did not accept that being summoned to court and having to repay a loan amounted to serious harm. 12 The Tribunal concluded that neither of the two reasons individually, nor their effect cumulatively, involved any serious harm to the applicant in the past. Nor did they pose any real chance of any serious harm or any real chance of significant harm on the applicant's return to India. The Tribunal ultimately concluded that applicant had not met the refugee criterion in s 36(2)(a) or the alternative criterion for protection in s 36(2)(aa) of the Migration Act 1958 (Cth).

The decision of the Federal Circuit Court dismissing the matter 13 As I have explained, the decision of the Federal Circuit Court from which the applicant seeks leave to appeal was delivered on 25 May 2016. In that decision, the primary judge properly considered three common factors in relation to the grant of leave under r 16.05(2)(a) of the Federal Circuit Court Rules to set aside the judgment in default. Those principles concerned (i) whether there was a reasonable excuse for the party's absence from the hearing in which the proceeding was struck out; (ii) the existence and nature of any prejudice which might flow to the other party from the reinstatement; and (iii) whether the applicant has a reasonably arguable prospect of success on the substantive application: see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530. 14 The primary judge refused leave to the applicant to reinstate the application for two reasons. The first was that there was no reasonable excuse for the applicant's failure to attend the hearing on 16 November 2015. The second reason was that the applicant did not have any reasonably arguable prospect of success. 15 As to the reasons why the applicant failed to attend court on 16 November 2015, the primary judge observed that the applicant had submitted that he had arrived at 11.30am and seen the list which said that his matter was being heard at 9.30am. He said that an unnamed person in Registry informed him that the matter had been concluded. The primary judge doubted whether the applicant had turned up at 11.30am, especially as he was still in court at that time. His associates were present in court and could have assisted the applicant. In any event, the primary judge considered that the correspondence sent to the applicant had been clear that the time for hearing was 9.30am. 16 The second reason, however, was described by the primary judge as the "overriding matter". This was that the applicant's prospects of success were non-existent. The applicant did not identify any arguable jurisdictional error. Counsel for the Minister, acting properly in relation to an unrepresented litigant, had also considered any potential argument that might exist. He, too, was unable to identify one.

Principles concerning leave to appeal 17 Leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth): MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 [1], citing Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344, 345-346 [6]-[15] (Lander J). 18 The principles concerning leave to appeal are well-established. Whether leave should be granted is generally dependent upon two considerations: (i) whether in all the circumstances the decision is attended by sufficient doubt to warrant reconsideration; and (ii) whether substantial injustice would result from a refusal of leave to appeal: Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225, 231 [29] (the Court); Samsung Electronics v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238, 248 [26] (the Court). 19 In Tyne (Trustee) v UBS AG [2016] FCA 241, [32], I explained that although these two criteria must be satisfied, they do not represent a "hard and fast rule": Samsung Electronics v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238, 249 [29] (the Court). Each case must be considered on its merits and the reference to "sufficient doubt" must mean a doubt that is sufficient in the circumstances: see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564, 584 [43]-[44] (French J, with whom Beaumont and Finkelstein JJ agreed).

The grounds upon which leave is sought 20 The applicant relies upon the following two grounds of appeal: (1) the applicant believes that the decision made by the delegate of the Minister has to be reviewed again; and (2) the applicant still faces the problems and believes that he is still eligible for a Protection Visa. 21 The applicant did not file any written submissions.

Reasons why leave must be refused 22 If leave to appeal were granted, and the appeal were allowed, then the Federal Circuit Court would be required to hear the application for review of the Tribunal's decision. That application for review would require the identification of a jurisdictional error: see the consideration of ss 474 and 476 of the Migration Act in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29. 23 The grounds upon which the applicant seeks leave do not identify any error in the decision of the primary judge nor any purported jurisdictional error in the Tribunal's decision. With respect, the primary judge correctly applied the legal principles concerning reinstatement of an application which was dismissed by default. The primary judge correctly held that no jurisdictional error existed in the Tribunal's decision. None is even arguable. The primary judge correctly concluded that any application before the Federal Circuit Court would have no prospects of success. 24 For these reasons, the decision of the primary judge is not attended by sufficient doubt to warrant reconsideration. Indeed, it is not attended by any doubt. The inevitable consequence of a further hearing is that the application would be dismissed. Leave to appeal should be refused.

Conclusion 25 The application for leave to appeal is dismissed. In the usual course the applicant would be ordered to pay the Minister's costs. The Minister has not provided an estimate of costs, nor sought to have the costs fixed. The appropriate order, as the Minister sought, would be that the applicant pay the Minister's costs to be taxed if not agreed. I will hear from the Minister concerning whether any alternative order is sought in light of the concessions by the applicant this morning. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman.

Migration Act 1958(Cth)ss 36(2)(a), 36(2)(aa), 65, 474, 476

Federal Circuit Court Rules 2001(Cth)rr 13.03C(1)(c), 16.05(2)(a)

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